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BERNARDO BIRRIEL v. COMMONWEALTH PENNSYLVANIA (10/07/81)

decided: October 7, 1981.

BERNARDO BIRRIEL, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, WORKMEN'S COMPENSATION APPEAL BOARD, UNITED ENGINEERS & CONSTRUCTORS AND COMMERCIAL UNION COMPANIES, RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in case of Bernardo Birriel v. United Engineers & Constructors, No. A-77396.

COUNSEL

Philip D. Freedman, Caldwell, Clouser & Kearns, for petitioner.

Martin J. Fallon, Jr., Swartz, Campbell & Detweiler, for respondents.

Judges Mencer, Williams, Jr. and Craig, sitting as a panel of three. Opinion by Judge Mencer.

Author: Mencer

[ 62 Pa. Commw. Page 124]

This is an appeal by Bernardo Birriel (claimant) from a decision of the Workmen's Compensation Appeal

[ 62 Pa. Commw. Page 125]

Board (Board) affirming a referee's decision which granted a petition to suspend his compensation payments. We reverse and remand.

On March 24, 1973, the claimant suffered an injury while in the course of his employment with United Engineers & Constructors (employer) for which he received workmen's compensation benefits, pursuant to a compensation agreement. On January 3, 1978, the employer filed a petition for suspension of compensation, alleging that the claimant had recovered from his injury and was able to return to available work. Several hearings were held on the petition.

In a decision dated May 24, 1979, the referee concluded that the employer had met the burden of proof to support a suspension of compensation benefits and granted the petition. Specifically, the referee concluded that, although the claimant still suffered from a disability of undetermined degree, it was not reflected as a loss of earnings or earning power. He did not, however, make a finding of the claimant's preinjury wage and compare it with the remuneration provided by jobs then available to the claimant. The claimant contends that this was error. We agree.

A claimant's "disability" is synonymous with "loss of earning power." Borough of Catawissa v. Shultz, 9 Pa. Commonwealth Ct. 546, 308 A.2d 633 (1973). The status of a claimant's disability is based upon a determination of his earning power and his wage record. Workmen's Compensation Appeal Board v. Bowen, 26 Pa. Commonwealth Ct. 593, 364 A.2d 1387 (1976). While no one factor is dispositive in ascertaining a claimant's earning power, it is essential to determine and compare a claimant's preinjury wage with the postinjury wage of the employment available to him and within his capacity to perform. Leaver v. Midvale Co., 162 Pa. Superior Ct. 393, 57 A.2d 698 (1948); cf. Workmen's Compensation Appeal Board v. Bowen

[ 62 Pa. Commw. Page 126]

(virtually no evidence of postinjury wage in record ...


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