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P.P.G. INDUSTRIES v. AITES (02/27/73)

decided: February 27, 1973.


Appeal from the Order of the Workmen's Compensation Appeal Board in case of Virgil C. Aites v. P.P.G. Industries, Inc., No. A-64517.


Wallace E. Edgecombe, with him Royston, Robb, Leonard, Edgecombe, Miller & Urbanik, for appellant.

Ralph A. Davies, with him Thomson, Rhodes & Grigsby, for appellee.

Judges Crumlish, Jr., Mencer and Rogers, sitting as a panel of three. Opinion by Judge Rogers.

Author: Rogers

[ 7 Pa. Commw. Page 589]

This workmen's compensation case presents for our decision the issue of whether a partially disabled employee loses his right to compensation by quitting a job provided by his employer at no loss of earnings in order to enter a profession where the emoluments of his new calling prove to be insufficient to his needs and he is thereafter unable because of his disability to find other employment.

The claimant, Virgil C. Aites, sustained a back injury while employed by PPG Industries, Inc., as a loader. By agreement, disability payments were suspended when he returned to PPG as a storeroom attendant, light work he was able to do, at a rate of pay the agreement states was equal to his pay as a loader.*fn1 He voluntarily left this employment to enter the ministry for which he had been engaged in home study for ten years. His earnings as a full-time minister were

[ 7 Pa. Commw. Page 590]

    apparently less than he anticipated and certainly not enough for his family's support. He is willing and able to be regularly employed, attending to his professional duties in his off hours. He remains disabled and can perform only light work. The position as storeroom attendant at PPG is no longer available to him.

The claimant instituted the present proceeding by filing a petition for reinstatement of the suspended supplemental agreement. The Board granted the petition and awarded claimant compensation measured by two-thirds of the difference between his weekly wages before the accident and his earning power as indicated by his wages as a stockroom attendant.

Section 413 of The Pennsylvania Workmen's Compensation Act, Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 772 provides: ". . . where compensation has been suspended because the employe's earnings are equal to or in excess of his wages prior to the injury*fn2 that payments under the agreement or award may be resumed at any time during the period for which compensation for partial disability is payable, unless it be shown that the loss in earnings does not result from the disability due to the injury." The employer contends that it has been here shown that Mr. Aites' loss in earnings resulted not from the admitted disability due to his injury but from his leaving the employment it provided for him in order to take up the ministry. It cites two cases in support of its argument. In Stewart v. Commonwealth, 198 Pa. Superior Ct. 261, 182 A.2d 100 (1962), the disabled claimant quit his employment with the State Highway Department in order to attend college. He was denied benefits because the employer had provided him with work he could do without loss of

[ 7 Pa. Commw. Page 591]

    earnings. It is apparent that the position the claimant had held remained available after his leaving and was available when the case was heard. In Crain v. Small Tube Products, Inc., 200 Pa. Superior Ct. 426, 188 A.2d 766 (1963), the disabled employee was discharged from his employment for infractions of company rules. The court first noted that the claimant seeking compensation for reoccuring loss of earnings under a suspended agreement had the burden of proving facts justifying the change of status. It then concluded that the claimant had not proved a partial loss of earnings due to the injury by showing merely that he had been unable to secure other employment by reason of the necessity to disclose his partial disability on applications for new employment. Concerning the provision of Section 413 that suspended compensation may be resumed unless loss of earnings do not result from disability due to the injury, Judge Montgomery wrote: "It seems to us that said [provision] was intended to make it clear that whenever it was shown that reoccurring loss of earnings was not attributable to the injury for which compensation had previously been allowed, the suspension of payments was not to be lifted but should continue. This, of course, immediately raises the question as to what a claimant is required to do or prove in order to secure compensation again for a disability admittedly due to injury. Must he induce his former employer to rehire him at a wage ...

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