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PITTSBURGH MOOSE LODGE # 46 AND FIREMAN'S FUND INSURANCE CO. v. WORKMEN'S COMPENSATION APPEAL BOARD (GRIECO (08/28/87)

decided: August 28, 1987.

PITTSBURGH MOOSE LODGE # 46 AND FIREMAN'S FUND INSURANCE CO., PETITIONERS
v.
WORKMEN'S COMPENSATION APPEAL BOARD (GRIECO, JR.), RESPONDENTS. ANGELO GRIECO, JR., PETITIONER V. WORKMEN'S COMPENSATION APPEAL BOARD (PITTSBURGH MOOSE LODGE # 46 AND FIREMAN'S FUND INSURANCE COMPANY), RESPONDENTS



Appeals from the Order of the Workmen's Compensation Appeal Board, in case of Angelo Grieco, Jr. v. Pittsburgh Moose Lodge No. 46, No. A89486.

COUNSEL

Daniel Horshman, with him, Mark Gordon, Meyer, Darragh, Buckler, Bebenek & Eck, for petitioner/respondent, Pittsburgh Moose Lodge # 46 and Fireman's Fund Insurance Co.

John P. Joyce, for respondent/petitioner, Angelo Grieco, Jr.

Judges Craig and Palladino, and Senior Judge Kalish, sitting as a panel of three. Opinion by Judge Palladino. Dissenting Opinion by Senior Judge Kalish.

Author: Palladino

[ 109 Pa. Commw. Page 55]

This case arises on cross appeals filed by Pittsburgh Moose Lodge No. 46 and its insurance carrier, Fireman's Fund Insurance Co. (Employer), and Angelo Grieco, Jr. (Claimant) from an order of the Workmen's Compensation Appeal Board (Board). Employer also filed a Motion to Quash Claimant's Appeal to this Court. The Board affirmed a referee's order, granting Employer's Petition for Modification pursuant to Section 413 of the Pennsylvania Workmen's Compensation Act (Act).*fn1 For the reasons which follow, we affirm the Board and deny Employer's Motion to Quash Claimant's appeal.

Claimant injured his lower back on June 14, 1982 while in the course and scope of his employment as a janitor. Thereafter, Claimant and Employer entered into a Notice of Compensation Payable wherein Claimant received $120.00 per week based upon a pre-injury wage rate of $134.00 per week.

[ 109 Pa. Commw. Page 56]

On November 10, 1983, Employer filed a Modification Petition, alleging that Claimant was only partially disabled and that work was available within his physical limitations. After a hearing, the referee, by order dated December 12, 1984, granted Employer's Petition for Modification directing that partial disability benefits of $32.67 per week be paid to Claimant, effective February 13, 1984. The referee's order was mailed to the parties on December 18, 1984. Thereafter, both parties appealed to the Board. Employer interposed a Motion to Quash Claimant's appeal as untimely, alleging that Claimant did not file his appeal within the twenty (20) day period provided by Section 423 of the Act, 77 P.S. ยง 853. By order dated October 4, 1985, the Board affirmed the referee, concluding that there was sufficient competent evidence to support his findings of fact and that he made no errors of law. Accordingly, the Board dismissed Employer's Motion to Quash as moot.

On appeal to this Court, Claimant asserts that the record does not contain sufficient evidence to support the findings of fact that there were jobs available to him at the time he was released by any physician to return to work. Employer, on the other hand, asserts that Claimant's benefits should have been suspended, rather than modified, because the referee accepted the medical testimony of Employer's doctor, finding that Claimant could perform all of the jobs approved by him. Since 5 of the 6 jobs approved by Employer's doctor, Dr. Zimmerman, involved full-time employment paying in excess of Claimant's Workmen's Compensation benefits, Employer asserts that the highest paying job should have been utilized. This, Employer asserts, would require a suspension of benefits pursuant to Section 413 of the Act. Further, Employer, in response to Claimant's appeal, filed a Motion to Quash, asserting that Claimant failed to file a timely appeal from the referee's decision.

[ 109 Pa. Commw. Page 57]

Our scope of review in an appeal from the Workmen's Compensation Appeal Board is limited to a determination of whether an error of law was committed, constitutional rights were violated or whether there is substantial evidence in the record to support the findings of fact. Gabriel v. Workmen's Compensation Appeal Board (No. 1 Contracting Corp.), 102 Pa. Commonwealth Ct. 470, 518 A.2d 895 (1986).

Claimant filed a petition for review with this Court essentially raising the same issues as he propounded before the Board. Pursuant to Pa. R.A.P. 1972, Employer filed a Motion to Quash alleging that Claimant failed to timely file an appeal from the referee's decision to the Board and that this failure precludes the Commonwealth Court's consideration of Claimant's appeal. Employer does not allege that the ...


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