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CHARLES FREEMAN v. WORKMEN'S COMPENSATION APPEAL BOARD (C. J. LANGENFELDER & SON) (06/26/87)

decided: June 26, 1987.

CHARLES FREEMAN, SR., PETITIONER
v.
WORKMEN'S COMPENSATION APPEAL BOARD (C. J. LANGENFELDER & SON), RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in case of Charles Freeman, Sr. v. C. J. Langenfelder & Son, No. A-90151.

COUNSEL

Edward Jaffee Abes, Edward Jaffee Abes & Associates, P.C., for appellant.

Louis C. Long, with him, Fred C. Trenor, Meyer, Darragh, Buckler, Bebenek & Eck, for appellee.

Judges MacPhail and Colins, and Senior Judge Narick, sitting as a panel of three. Opinion by Judge Colins.

Author: Colins

[ 107 Pa. Commw. Page 139]

Charles Freeman, Sr. (claimant) appeals an order of the Workmen's Compensation Appeal Board (Board) which granted the modification petition of C. J. Langenfelder & Son (employer) and denied the claimant's claim of concurrent employment under Section 309(e) of The Pennsylvania Workmen's Compensation Act (Act), Act

[ 107 Pa. Commw. Page 140]

    of June 2, 1915, P.L. 736, as amended, 77 P.S. ยง 582(e). We vacate and remand.

Claimant suffered a work-related injury on July 12, 1983 for which he received total disability benefits pursuant to a notice of compensation payable. The employer filed a modification petition, alleging, inter alia, that light work was available which the claimant was capable or performing. In his answer, the claimant denied the employer's claim and requested a review of his average weekly wage, alleging that he was entitled to weekly wages calculated on the basis of concurrent employment.

The referee found that the claimant had two concurrent employers until approximately two weeks prior to the injury when the second employer, A. J. Picone, went out of business; that the claimant had only one employer at the time of his injury; that claimant's disability had changed from total to partial; and that the employer had shown that light work was available to the claimant as of May 17, 1984. The referee held that the claimant was entitled to partial disability benefits to be computed by using only his earnings from the employer.

Claimant initially contends that the referee erred as a matter of law in holding that claimant was not entitled to weekly wages based on concurrent contracts of employment. He does not contest the referee's findings of fact on this issue, but argues that Section 309(e) is ambiguous with respect to the time period during which an employee is required to have concurrent contracts of employment and suggests that it should be interpreted as requiring concurrent employment within the year preceding the injury.

Section 309(e) states in pertinent part: "Where the employe is working under concurrent contracts with two or more employers, ...


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