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HARRY E. BUTCHER v. WORKMEN'S COMPENSATION APPEAL BOARD (TREADWAY RESORT INN) (11/17/86)

decided: November 17, 1986.

HARRY E. BUTCHER, PETITIONER
v.
WORKMEN'S COMPENSATION APPEAL BOARD (TREADWAY RESORT INN), RESPONDENT. TREADWAY RESORT INN AND UNDERWRITERS ADJUSTING COMPANY, PETITIONERS V. WORKMEN'S COMPENSATION APPEAL BOARD (BUTCHER), RESPONDENTS



Appeals from the Orders of the Workmen's Compensation Appeal Board in the case of Harry E. Butcher v. Treadway Resort Inn, No. A-87605.

COUNSEL

Matthew Guntharp, with him, John L. Sampson, Appel, Yost & Sorrentino, for appellant/appellee, Harry E. Butcher.

Robert P. Reed, Metzger, Wickersham, Knauss & Erb, for appellee/appellant, Treadway Resort Inn.

Judges Craig, Colins and Palladino, sitting as a panel of three. Opinion by Judge Palladino.

Author: Palladino

[ 102 Pa. Commw. Page 243]

This case involves cross-appeals from two decisions of the Workmen's Compensation Appeal Board (Board) which affirmed-in-part and modified-in-part an amended decision of a referee.

Harry E. Butcher (Claimant) was employed by Treadway Resort Inn (Employer) as a service and dining room manager.*fn1 Claimant sustained a work-related back injury while moving heavy objects in Employer's dining room. Claimant filed a Workmen's Compensation Claim Petition on September 17, 1981.

The referee issued a decision, dated January 4, 1984, awarding compensation to Claimant at the full disability rate from June 1, 1981 until August 31, 1981 based on a weekly earning capacity of $171.44.*fn2

[ 102 Pa. Commw. Page 244]

Thereafter, on January 13, 1984, Claimant's counsel sent a letter to the referee alleging: 1) that the referee based the total disability compensation award on Claimant's post-injury rather than pre-injury earning capacity, and 2) that the referee failed to award partial disability compensation although he found a disparity between Claimant's pre-injury and post-injury earning capacity.

On January 17, 1984, the referee issued an amended decision. This decision, in substantially the same form as the first decision, awarded partial disability compensation based on the differential between Claimant's pre-injury and post-injury wages. These partial disability payments were to begin " September 7, 1983,*fn3 continuing to the present and into an indefinite future." (Emphasis added.) The referee did not, however, correct the full disability compensation rate nor did he make any findings of fact as to partial disability.

On cross-appeal to the Board, Claimant asserted that the amount of total disability compensation was in error and that the September 7, 1983 commencement date of partial disability compensation should have been September 1, 1981. The Employer asserted that the amended decision of the referee was "null, void and without validity as said decision was issued without the concurrence of the parties and in violation of Title 34, Pa. Code, Section 131.67".

By Order dated June 14, 1985, the Board modified the commencement date of partial disability stating:

We find merit for that portion of the appeal concerning the commencement date of partial disability. Compensation for partial disability should

[ 102 Pa. Commw. Page 245]

    commence on the day after total disability ceases which is August 31, 1983. Therefore, the claimant is entitled to compensation for partial disability for the period September 1 to September 7, 1983 and, to that extent, the referee's order is hereby modified. . . . We find no merit in Claimant's contention that the referee misconstrued ...


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