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MODERN COOLER COMPANY v. WORKMEN'S COMPENSATION APPEAL BOARD AND LEROY DRISCOLL (03/17/75)

decided: March 17, 1975.

MODERN COOLER COMPANY, EMPLOYER, AND SECURITY INSURANCE GROUP, SUCCESSOR TO NEW AMSTERDAM CASUALTY CO., INSURANCE CARRIER, APPELLANTS,
v.
WORKMEN'S COMPENSATION APPEAL BOARD AND LEROY DRISCOLL, APPELLEES



Appeals from the Orders of the Workmen's Compensation Appeal Board in case of Leroy Driscoll v. Modern Cooler Company, No. A-67617.

COUNSEL

Raymond J. Porreca, for appellants.

Frank Carano, with him James N. Diefenderfer, for appellees.

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

Author: Blatt

[ 18 Pa. Commw. Page 24]

These are appeals by the Modern Cooler Company (employer) from two successive decisions of the Workmen's Compensation Appeal Board (Board) modifying the referee's order which had dismissed the employer's petition to terminate compensation to LeRoy Driscoll (claimant).

On December 21, 1961, the employer entered into an agreement*fn1 to compensate the claimant for an injury resulting in total disability at a rate of $42.50 per week. On August 6, 1965, the employer filed a petition to terminate compensation on the grounds that the claimant "returned to regular work at the same wages" on or about April 29, 1962. The claimant responded, however, that he still suffered partial disability from the injury.

The factual background of this case is best summarized by the referee's findings following hearings held

[ 18 Pa. Commw. Page 25]

    between December 22, 1966 and February 29, 1973 regarding the termination petition:

"1. Claimant suffered a torn rotator cuff in his right shoulder due to an accident sustained on November 27, 1961 when claimant and a fellow employee were lifting an ice cube machine weighing four hundred (400) pounds to a height of forty-six (46) inches, while in employ of defendant, (Modern Cooler Company) upon which the Agreement of Compensation, above referred to, is based.

"2. Claimant returned to his former employment as a refrigeration -- air conditioning mechanic on or about April 30, 1962 and continued to work in that capacity at the same hourly rate of pay until December 7, 1962.

"3. Claimant was given less work by his employer than heretofore, commencing about October 19, 1962 and such reduced work resulted in a decrease, because of the claimant's impaired physical condition, in claimant's earnings, for this employer from his wage of $174.00 per week at the time of the accident to $104.40 per week.

"4. Claimant was separated from his position at defendant-employer on December 7, 1962 and because of his limited physical capacity was unemployed, except for sporadic jobs, until August 12, 1963 when he became employed as a refrigeration mechanic for the United States Naval Development Center.

"5. Claimant's wages at the United States Naval Development Center at the time of his initial employment there, was $2.93 per hour for a forty hour week as compared to $4.35 per hour earned during his employ with defendant, or about a 33% decrease in earning power.

"6. Claimant's duties at his aforesaid new employment do not require lifting of over fifty pounds. A limitation of 150 ...


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