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GEORGE P. VAS v. WORKMEN'S COMPENSATION APPEAL BOARD (BETHLEHEM STEEL CORPORATION) (09/21/87)

decided: September 21, 1987.

GEORGE P. VAS, PETITIONER
v.
WORKMEN'S COMPENSATION APPEAL BOARD (BETHLEHEM STEEL CORPORATION), RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in case of George P. Vas v. Bethlehem Steel Corporation, No. A-89506.

COUNSEL

Richard J. Jacobs, for appellant.

Robert H. Holland, with him, Barbara L. Hollenbach, for respondent, Bethlehem Steel Corporation.

Judges Doyle and Barry, and Senior Judge Barbieri, sitting as a panel of three. Opinion by Senior Judge Barbieri.

Author: Barbieri

[ 109 Pa. Commw. Page 448]

George P. Vas, Claimant in this workmen's compensation case, seeks review of an order of the Workmen's Compensation Appeal Board (Board) which affirmed a referee's decision granting a Modification Petition filed by Defendant.

Claimant, while employed as a machine operator by Bethlehem Steel Corporation (Employer), Defendant,

[ 109 Pa. Commw. Page 449]

    suffered an injury on February 4, 1983 consisting of a torn rotator cuff of the right shoulder sustained while using a wrench at work. Compensation benefits were paid pursuant to a Notice of Compensation Payable, at the rate of $306 per week, "the maximum weekly compensation payable" for 1983 injuries.*fn1 Subsequently, on May 5, 1983, Defendant filed its Modification Petition seeking a reduction as of May 1, 1983 of compensation benefits payable to the Claimant. On or about April 29, 1983, Defendant offered Claimant re-employment in a position as janitor with duties therein reduced in order to compensate for Claimant's continuing disability. The modified janitorial position would provide a wage of $379.80 per week as compared with the then agreed average weekly wage of Claimant at the time of his injury of $632.30, a loss of $252.50, yielding a continuing payment of compensation benefits for partial disability at the rate of $168.34.*fn2 Further, the referee's reduction in weekly benefits for partial disability was back-dated to May 1, 1983, determined by the referee to provide the Employer with an entitlement to a $50.00 per week credit from that date and treating this as an overpayment. It was further ordered that the Employer be thus reimbursed by this credit against future payments to compensate for this over-payment which it is stated amounts to the total sum of $18,000.

[ 109 Pa. Commw. Page 450]

Also, the referee by arithmetical error in his opinion of December 10, 1984, ordered partial disability benefits from May 1, 1983 at the rate of $252.50, rather than two-thirds thereof, or $168.34. In that opinion there is included the following:

Defendant is entitled to credit for the over-payment of compensation from May 2, 1983 to date and may deduct the sum of $50.00 per week from the compensation payable to the claimant for partial disability until overpayment from May 2, 1983 to date, is paid in full.

This was plain error. No such credit is authorized absent a supersedeas, and the Modification Petition herein did not qualify for an automatic supersedeas under Section 413 of The Pennsylvania Workmen's Compensation Act (Act), Act of June 2, 1915, P.L. 736, as amended, 77 P.S. ยง 774, nor was a supersedeas requested in the Employer's Modification Petition.*fn3

Claimant's appeal here is two-fold: (1) the Defendant has failed to meet its burden to show a reduction in compensable disability; and (2) the Defendant has provided an average weekly wage which is in error in failing to include therein vacation and holiday pay.

We address first the Claimant's contention that the referee's finding of a reduction in disability is not based upon substantial evidence and that, therefore, it cannot stand. The ...


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