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ROADWAY EXPRESS v. WORKMEN'S COMPENSATION APPEAL BOARD (CONNERY) (10/29/87)

decided: October 29, 1987.

ROADWAY EXPRESS, INC., PETITIONER
v.
WORKMEN'S COMPENSATION APPEAL BOARD (CONNERY), RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board, in case of Frank Connery v. Roadway Express, Inc., No. A-88635.

COUNSEL

Michael I. Levin, Cleckner and Fearen, for petitioner.

No appearance for respondents.

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

Author: Crumlish

[ 110 Pa. Commw. Page 536]

A workmen's compensation referee/Board order granted the modification petition of Roadway Express, Inc. Roadway appeals that part of the order establishing the date of partial disability and the amount of benefits. We vacate and remand.*fn1

While employed by Roadway, Frank Connery sustained a work-related back injury for which he received total disability benefits. In March 1981, Connery began to work for a private employer performing several farm-related duties.*fn2 He was compensated by being permitted to live on the farm rent-free.

[ 110 Pa. Commw. Page 537]

Based on the medical affidavit of Dr. Eugene DiSalvo, the referee determined that Connery was no longer totally disabled and was capable of performing sedentary work as of June 3, 1982, the date of his examination. The referee also determined that Connery remained eligible for the maximum allowable rate for a partial disability,*fn3 an amount identical to that which he had been receiving on total disability. The Board summarily affirmed.

Roadway initially contends that the Board erred by failing to modify benefits effective March 1981 since Connery testified that he began working at that time. We agree.*fn4

The controlling date for the purposes of determining partial disability is ordinarily the date the medical expert examines the claimant and determines that he is capable of gainful employment. Tarr v. Workmen's Compensation Appeal Board (Kayro Precision Casting Corp.), 95 Pa. Commonwealth Ct. 294, 505 A.2d 389 (1986). However, in this instance, where Connery indicated that he had been employed for over a year prior to Dr. DiSalvo's examination, it is self-evident that he was not totally disabled during this period. Therefore, we hold that the referee erred in failing to modify benefits

[ 110 Pa. Commw. Page 538]

    effective March 1981 when he began working for ...


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