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ORLANDO WALTON v. COOPER HOSIERY COMPANY (01/03/80)

decided: January 3, 1980.

ORLANDO WALTON, PETITIONER
v.
COOPER HOSIERY COMPANY, RESPONDENT



Appeal from the Workmen's Compensation Appeal Board in case of Orlando Walton v. Cooper Hosiery Company, No. A-74902.

COUNSEL

Paul Crowley, with him Wilfred F. Lorry and Rochelle Berenholz, for petitioner.

R. D. Harburg, with him Swartz, Campbell & Detweiler, for respondent.

Judges Rogers, DiSalle and Craig, sitting as a panel of three. Opinion by Judge DiSalle.

Author: Disalle

[ 48 Pa. Commw. Page 285]

We have before us a petition for review of a decision by the Workmen's Compensation Appeal Board awarding $56.84 per week for 275 weeks as specific loss benefits to Orlando Walton (Claimant) pursuant to Section 306(c) of The Pennsylvania Workmen's Compensation Act (Act), Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 513.

It is not contested that Claimant has suffered the permanent loss of use of his left eye for all practical intents and purposes, entitling him to 275 weeks specific loss benefits plus ten weeks healing period pursuant to Section 306(c) of the Act. The sole issue is the correct rate of specific loss benefits. Claimant's average weekly wage on October 12, 1976, the date of injury, was $85.26 per week. The referee awarded specific loss benefits under Section 306(c) in the amount of $93.50 per week (one-half the maximum compensation payable for total disability). Cooper Hosiery Company (Employer) appealed from this award, arguing that Claimant is entitled to benefits at the lower rate of $56.84 per week (two-thirds of his average weekly wage). Employer relies on Johnson v. Workmen's Compensation Appeal Board, 15 Pa. Commonwealth Ct. 254, 327 A.2d 222 (1974), where

[ 48 Pa. Commw. Page 286]

    this Court held that Section 306(c) mandates specific loss benefits in the weekly amount of two-thirds of a claimant's wages as long as that amount falls between the statutory maximum and minimum amounts. We held that the statutory minimum amount payable under Section 306(c) must be determined with reference to claimant's personal maximum compensation payable for total disability under Section 306(a) of the Act, 77 P.S. § 511.

Claimant contends that the effect of the 1974 amendments to subsections (a) and (c) of Section 306 by the Act of December 5, 1974, P.L. 782, No. 263 (Act 263) is to vitiate the Johnson holding in setting the statutory perimeters for specific loss benefits. We agree. In our view, the legislature intended to change the result produced by our decision in Johnson. As in 1974, when Johnson was decided, subsection (c) now sets out an award of "sixty-six and two-thirds per centum of wages during two hundred seventy-five weeks specific loss benefits for the loss of an eye." Section 306(c)(7) of the Act, 77 P.S. § 513(7). After setting forth schedules for other injuries, subsection (c) continues by declaring the statutory perimeters within which this award must fall. This paragraph was amended in 1974, and now provides:*fn1

Compensation under paragraphs (1) through (24) of this clause shall not be more than the maximum compensation payable nor less than fifty per centum of the maximum compensation payable per week for total disability as provided in subsection (a) of this section,

[ 48 Pa. Commw. Page 287]

    but in no event more than the Statewide ...


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