Appeal from the Order of the Workmen's Compensation Appeal Board in the case of John Latta v. Latrobe Die Casting Company, No. A-85914.
Thomas P. Geer, for petitioner.
H. Reginald Belden, Jr., Stewart, Belden, Herrington and Belden, for respondent, Latrobe Die Casting Company.
Judges Craig and Palladino, and Senior Judge Kalish, sitting as a panel of three. Opinion by Judge Palladino.
John Latta (Claimant) appeals from an order of the Workmen's Compensation Appeal Board (Board) affirming a referee's decision to dismiss Claimant's review petition.
Claimant was employed by the Latrobe Die Casting Company (Employer) when, on March 24, 1977, he suffered a work-related injury to his right arm. Claimant was paid workmen's compensation benefits for total disability from the time of his injury until he returned to work in August of 1977. Claimant then received partial disability payments calculated at thirteen-week intervals, pursuant to a number of Supplemental Agreements entered into between Claimant and Employer.*fn1
The last Supplemental Agreement, dated January 2, 1980, specified that Claimant was entitled to partial disability compensation for the thirteen-week period from September 4, 1979 to December 4, 1979. The Agreement also contained the following:
Claimant resumed work on 12-4-79, with an undetermined partial disability not reflected in the loss of wage. Compensation benefits are hereby suspended from 12-4-79, until there is a change in the status of this case.
On October 20, 1979, Claimant and his fellow employees lawfully went out on strike against Employer. The strike continued for approximately one year, after which employees were called back in order of seniority to fill a limited number of positions available in Employer's reduced work force. Claimant was not called back to work because he did not have sufficient seniority.
Thereafter, Claimant filed a review petition seeking reinstatement of total disability benefits as of October 20, 1979, the date the strike commenced. The referee dismissed Claimant's petition, finding that Claimant had offered no evidence that he suffers from any disability related to his work injury, and that Claimant was absent from work because of his lack of seniority which, under the collective bargaining agreement between Employer and Claimant's union, precluded Employer from calling Claimant back to work before more senior employees. In light of these facts, the referee determined that ...