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decided: September 7, 1983.


Appeal from the Order of the Workmen's Compensation Appeal Board in the case of Joseph F. Klein v. Duquesne Light Company, No. A-79368.


John A. Lee, Senior Attorney, for petitioner.

John M. McTiernan, McArdle, Caroselli, Spagnolli & Beachler, for respondent, Joseph F. Klein.

President Judge Crumlish, Jr. and Judges Williams, Jr. and Doyle, sitting as a panel of three. Opinion by President Judge Crumlish, Jr.

Author: Crumlish

[ 77 Pa. Commw. Page 68]

Duquesne Light Company (Duquesne) appeals a Workmen's Compensation Appeal Board (WCAB) order affirming a referee's award of benefits to Joseph Klein. We reverse in part and remand in part.

Klein, a Duquesne employee, injured his arm at work on July 15, 1979, but continued to work full-time, including overtime. In December, 1979, Duquesne prohibited him from working overtime as a precaution against further injury. Klein then filed for benefits, contending that he was partially-disabled.

The referee awarded partial-disability benefits, running from the date of the injury.*fn1 He assessed the cost of a supplemental medical examination against Klein because he found that the examination had been unnecessary. On appeal, the WCAB affirmed the benefits award but reversed the referee's decision as to examination costs.

We must decide: 1) whether the award of benefits was proper; 2) whether the payments should have run

[ 77 Pa. Commw. Page 69]

    from the date of injury or from the date that Klein stopped working overtime; and 3) whether Klein should have been charged with the costs of the supplemental medical examination.

Where the party with the burden of proof has prevailed below, our scope of review is limited to determining whether constitutional rights have been violated, errors of law were committed, or findings of fact were unsupported by substantial evidence. Hemer v. Workmen's Compensation Appeal Board, 71 Pa. Commonwealth Ct. 174, 454 A.2d 225 (1983).

Duquesne alleges that the benefits award violates Section 306(b) of The Pennsylvania Workmen's Compensation Act (Act),*fn2 which provides, in part, that:

[I]n no instance shall an employe receiving compensation under this section receive more in compensation and wages combined than a fellow employe in employment similar to that in which the injured employe was engaged at the time of the injury. (Emphasis added.)

Klein's wages and compensation combined are greater than the wages of several of his co-workers, so we must interpret the term "fellow employee."

Duquesne contends that, if a claimant's wages and compensation for a given period total more than the wages of any co-worker for the same period, he should be denied benefits. This interpretation does not serve the remedial nature of the Act, which was designed to offset the losses of injured workers. Section 306(b) is intended to assure that the system-of-loss measurement remains calibrated; that changing conditions do not transform compensation into unjust enrichment. We hold that the average wage of the claimant's fellow employees should be used for purposes of comparison with the claimant's wages and compensation under this section.

[ 77 Pa. Commw. Page 70]

We conclude that Klein qualifies for benefits. The referee made computational errors, however, so we remand for a recalculation of benefits in accordance with the directions below.

Klein's loss of overtime began in December, 1979, well after he injured his arm in July, 1979. Hence, the payments must run from December, and Klein may not receive benefits for any period in which he worked overtime.*fn3 Moreover, since December, 1979, is the critical date, Klein's and his fellow employees' wages must be calculated as of that date, not as of July 15, 1979.

On the issue of the medical examination costs, we reverse the WCAB. Klein's arm injury was never in dispute, so there was no need for a supplemental medical examination.


The Workmen's Compensation Appeal Board order, No. A-7936, dated October 29, 1981, is hereby reversed as to the imposition upon Duquesne Light Company of the cost of the medical examination. The matter is remanded for recalculation of benefits in a manner not inconsistent with this Opinion. Jurisdiction relinquished.


Reversed in part and remanded.

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