Appeals from the Order of the Workmen's Compensation Appeal Board in the case of Harry S. Keith v. Peoples Natural Gas Company, No. A-77382.
Richard R. Riese, with him Ralph T. DeStefano, Thorp, Reed & Armstrong, for petitioner.
Richard J. Russell, for respondent, Harry S. Keith.
Judges Mencer, Blatt and MacPhail, sitting as a panel of three. Opinion by Judge MacPhail. Judge Palladino did not participate in the decision in this case.
[ 65 Pa. Commw. Page 120]
The Peoples Natural Gas Company (Petitioner) has appealed from two orders of the Workmen's Compensation Appeal Board (Board). The first appeal, filed to No. 13 C.D. 1981, is from a Board order affirming a referee's grant of workmen's compensation benefits to Harry S. Keith (Respondent) and denying Petitioner a credit against its workmen's compensation liability. Petitioner appeals only the latter Board determination. The second appeal, filed to No. 736 C.D. 1981, is
[ 65 Pa. Commw. Page 121]
from an order denying Petitioner's request for a rehearing before the Board for the purpose of presenting additional evidence on the "credit" issue. The two appeals have been consolidated for consideration by this Court.
Respondent had been employed by Petitioner as a Customer Service Man-A for approximately 25 years when he suffered a heart attack on November 19, 1977. Respondent filed a claim petition on September 27, 1978*fn1 and, after two hearings, a referee concluded that Respondent had met his burden of proving that he had suffered a compensable injury. The referee granted Respondent compensation benefits for total disability effective November 20, 1977. At issue in the appeal filed to No. 13 C.D. 1981 is the referee's eleventh finding of fact:
Under a contractual [sic] agreement with the Company, Claimant was paid full pay for eighteen weeks (18) from the date he last worked on November 18, 1977, and then he received half pay for the rest of the 52 weeks. Defendant is entitled to a credit against future payments of compensation for benefits/wages he received while he was off work.
The Respondent appealed to the Board challenging, inter alia, fact finding No. 11. The Board, on appeal, concluded that the credit had been improperly allowed by the referee, but included in its opinion the following statement: "Parenthetically, had there been a collective
[ 65 Pa. Commw. Page 122]
bargaining agreement which had been pleaded and which specifically had been determined to read 'that workmen's compensation payments required by law are not in addition to but are included in the sick pay allowance', this Board may have found otherwise." Petitioner appealed the Board's order and also subsequently filed a petition for rehearing with the Board to enable it to introduce into evidence the collective bargaining agreement by which Respondent was ...