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BASIL LUCIANI v. WORKMEN'S COMPENSATION APPEAL BOARD (BROCKWAY GLASS CO. (02/11/87)

decided: February 11, 1987.

BASIL LUCIANI, PETITIONER
v.
WORKMEN'S COMPENSATION APPEAL BOARD (BROCKWAY GLASS CO., CORNING GLASS CO., FURNCO CONSTRUCTION CO.), RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in the case of Basil Luciani v. Corning Glass Company and Brockway Glass Company and Furnco Construction Company and Commonwealth of Pennsylvania, No. A-82821.

COUNSEL

Alexander J. Pentecost, with him, Amiel B. Caramanna, Jr., for petitioner.

Dennis N. Persin, Stewart, Belden, Herrington & Belden, for respondent, Brockway Glass Company.

Edward A. McFarland, Grigsby, Gaca & Davies, P.C., for respondent, Furnco Construction Company.

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

Author: Doyle

[ 103 Pa. Commw. Page 624]

This is an appeal by Basil Luciani (Claimant) from an order of the Workmen's Compensation Appeal Board (Board) which reversed the determination of a referee granting compensation benefits to Claimant except for a suspension from August 15, 1974 through October 22, 1974.

[ 103 Pa. Commw. Page 625]

Claimant had been employed as a sawman/bricklayer for various companies. His duties included cutting silica brick to various sizes. On July 23, 1974, claimant filed a petition alleging disability due to silicosis as of March 26, 1974. The named defendants in the action were Corning Glass Works (Corning) and Brockway Glass Company (Brockway). On May 28, 1975 Claimant filed another claim petition naming, in addition to Brockway and Corning, Furnco Construction Company. This time Claimant alleged a disability date of March 28, 1975. At the hearing Claimant stipulated that he wished to utilize the March 26, 1974 date as his disability date.

The referee found based on the testimony of Claimant's doctor that Claimant had been totally disabled as of March 26, 1974. The referee further found that this total disability continued with the exception of the period of August 15, 1974 through October 21, 1974. He determined that Claimant was subject to a suspension for this period because he had found light duty work with wages equal to or greater than those earned prior to his disability. The referee assessed liability only against Brockway and appeal to the Board followed.*fn1

On appeal the Board concluded as a matter of law that Claimant had not sustained his burden of proving that he was "legally" disabled on March 26, 1974, but only that he was "medically" disabled.*fn2 It reasoned that because subsequent to the date of disability Claimant was employed for approximately nine weeks at wages equal to or greater than those he had earned before the

[ 103 Pa. Commw. Page 626]

    alleged disability, he had shown no "loss of earning power," a term synonymous with disability. We must thus decide whether a claimant who works at a light duty position for a period of some weeks subsequent to the date of the alleged total disability, and earns during that period of time wages equal to or ...


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