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MCGREGOR ARCHITECTURAL IRON COMPANY v. WORKMEN'S COMPENSATION APPEAL BOARD (ROACH) (01/20/88)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: January 20, 1988.

MCGREGOR ARCHITECTURAL IRON COMPANY, PETITIONER
v.
WORKMEN'S COMPENSATION APPEAL BOARD (ROACH), RESPONDENTS

Appeal from the order of the Workmen's Compensation Appeal Board in case of Robert Roach v. McGregor Architectural Iron Company, No. A-91049.

COUNSEL

David E. Heisler, Lenahan & Dempsey, P.C., for petitioner.

Brian James Walsh, with him, John W. Young, Young & Slocum, for respondents.

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

Author: Barbieri

[ 112 Pa. Commw. Page 602]

McGregor Architectural Iron Company, Employer, appeals here an order of the Workmen's Compensation Appeal Board (Board) which affirmed a referee's dismissal of a Modification Petition filed by Employer. We reverse.

The issue before us is a very simple one. Claimant, Robert Roach, was seriously injured on October 4, 1983 when he fell twenty-five feet while at work. Employer, in support of its Modification Petition, presented evidence

[ 112 Pa. Commw. Page 603]

    of job opportunities which were all deemed by the referee to be not acceptable and, therefore, not "available" to Claimant, Kachinski v. Workmen's Compensation Appeal Board (Vepco Construction Co.), 516 Pa. 240, 532 A.2d 374 (1987), except for a part-time job the referee found Claimant could perform, but which would pay only $60.30 per week. Since the Claimant's pre-injury wage was $643.70, and the receipt by Claimant of $60.30 per week would not reduce payment to him of the full amount previously payable for total disability,*fn1 there being thus no change in the weekly compensation rate,*fn2 the referee dismissed Employer's Modification Petition. On appeal the Board affirmed.

Defendant's sole contention on this appeal is that it is entitled to the reduction of disability status from total to partial, regardless of whether this changes the dollars payable by it, since changing the Claimant's basis for

[ 112 Pa. Commw. Page 604]

    payments from those required by The Pennsylvania Workmen's Compensation Act (Act),*fn3 from Section 306(a) to Section 306(b),*fn4 changes the maximum period for payments, reducing the liability time for partial disability*fn5 payments to 500 weeks. We must agree.

Since there is no question that Claimant is partially disabled, he is subject to the time limitation in Section 306(b), which contains the following provision:

For disability partial in character . . . sixty-six and two-thirds per centum of the difference between the wages of the injured employe, . . . and the earning power of the employe thereafter; but such compensation . . . shall be paid during the period of such partial disability . . . but for not more than 500 weeks. (Emphasis added.)

Accordingly, we will reverse and remand on our holding that the Employer is entitled to an order reducing Employer's liability from total to partial. We need not order the application of 500 weeks' limitation, since it is statutory and thus automatic so long as Claimant's disability status does not change.*fn6

Order

Now, January 20, 1988, the order of the Workmen's Compensation Appeal Board as of No. A-91049, dated July 3, 1986, is hereby reversed and the case is remanded

[ 112 Pa. Commw. Page 605]

    for the entry of an Order reducing Employer's liability from total to partial with no change in the weekly amount of compensation, subject, however, to any future change that may be required by changes in circumstances agreed upon or ruled according to law.

Disposition

Reversed and remanded.


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