Appeal from the Order of the Workmen's Compensation Appeal Board in case of John Drozd v. The Lion, Inc., No. A-81533.
Joseph P. Giovannini, Jr., Winkler, Danoff and Lubin, for petitioner.
Hugh F. Mundy, Dougherty, Mundy & Leventhal, for respondents.
Judges Rogers and Craig, and Senior Judge Barbieri, sitting as a panel of three. Opinion by Judge Rogers.
[ 86 Pa. Commw. Page 365]
John Drozd (claimant) has appealed an order of the Workmen's Compensation Appeal Board (board) upholding a referee's action dismissing his petition for modification of an award of compensation for total disability.
The claimant was injured at work on August 4, 1972. By decision dated May 3, 1976, a referee awarded him compensation for total disability, fixing the amount at $60.00 per week. The employer appealed, contending that the claimant was improperly found to be totally disabled, but the board affirmed on November 10, 1976. There were no further appeals.
In December, 1980, the claimant filed a petition for modification of the referee's award affirmed by the board on November 10, 1976. The claimant invoked
[ 86 Pa. Commw. Page 366]
Section 413 of The Pennsylvania Workmen's Compensation Act, Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 771, 772.
Section 306 of the Act, 77 P.S. §§ 511-516, provides schedules of the amounts of compensation payable on account of various disabilities resulting in loss of earnings and for losses of members of the body. Section 306(a), 77 P.S. § 511, provides the schedule for total disability. The claimant says, and everyone agrees, that the referee employed an obsolete version of Section 306(a) in arriving at the figure of $60 per week in his case; that the referee should have stated as the amount of compensation payable in his case to be at $86.14 per week which is 66 2/3 per cent of his weekly wages of $129.20.
As noted, the claimant was injured on August 4, 1972. Prior to May 1, 1972, Section 306(a) established as the scheduled payment to a totally disabled employee an amount equal to 66 2/3 per cent of his weekly wages, but not more than $60.00 per week. The Act of March 29, 1972, P.L. 159, effective May 1, 1972, amended Section 306(a) so as to remove the $60.00 cap. Hence, on August 4, 1972, when the claimant was injured, there was no cap, with the result that on his weekly wages of $129.20 per week the schedule called for him to receive $86.14 per week. The claimant seeks, of course, the amount thus far of the underpayments and an order that future payments be made according to the proper schedule.
Section 413 of the Act, which the claimant invoked to correct this clear and continuing error, is in two paragraphs. The first paragraph, at 77 P.S. § 771, permits a referee at any time to review and modify or set aside a notice of compensation payable or an agreement for compensation if it be ...