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

COMMONWEALTH COURT OF PENNSYLVANIA


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 greater than those earned before the alleged date of disability, is in fact disabled.

It is true that we have often held that the term disability is synonymous with a loss of earning power, see e.g. Jones & Laughlin Steel Corp. v. Workmen's Compensation Appeal Board, 35 Pa. Commonwealth Ct. 610, 387 A.2d 174 (1978), and that one who works cannot be totally and permanently disabled. See e.g. Airco Speer Carbon v. Workmen's Compensation Appeal Board, 38 Pa. Commonwealth Ct. 274, 392 A.2d 360 (1978). These propositions of law however, are not meant to disqualify totally a claimant, in a situation such as this, where substantial evidence supports a finding of permanent total disability*fn3 and Claimant was re-employed at light duty work*fn4 for a brief period of time which amounted to a mere intervening suspension of that total disability.

The distinction must be made between medical and legal disability. Claimant was medically and legally disabled as of March 1974, but he was not legally disabled

[ 103 Pa. Commw. Page 627]

    during the nine week period from August 15, 1974 through October 22, 1974 because he worked and had earnings. Claimant's short-term attempt to work should not, in our view, render his medical disability a nullity. Indeed, as his doctor explained, a disabled employee often will try for a period of time to go back to work. (RR 91a). There being no question that for the nine week period Claimant was not legally disabled, the suspension of benefits for that period ordered by the referee was proper. Otherwise, Claimant was permanently and totally medically and legally disabled and he was entitled to a reinstatement of benefits once his light duty job ended.

Based upon the foregoing opinion the order of the Board is reversed.

Order

Now, February 11, 1987, the order of the Workmen's Compensation Appeal Board, No. A-82821 dated November 29, 1984 is hereby reversed and the order of the referee granting compensation and assessing liability against Brockway Glass Company is reinstated.

Disposition

Reversed.


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