Appeal from the Order of the Workmen's Compensation Appeal Board, in the case of William M. Glinka v. Sears, Roebuck & Company, No. A-87134.
Susan McLaughlin, for petitioner.
Paul Auerbach, for respondent.
President Judge Crumlish, Jr., Judge Colins, and Senior Judge Blatt, sitting as a panel of three. Opinion by Judge Colins.
Sears, Roebuck & Company (employer) appeals from an order of the Workmen's Compensation Appeal Board (Board) which affirmed a referee's decision to lift the suspension of William Glinka's (claimant) disability benefits.*fn1
Three issues are raised on appeal. The employer first raises the issue of whether the referee's conclusion that there were no jobs compatible with the claimant's residual disability was not based upon substantial evidence and that, therefore, the referee's reinstatement of benefits was erroneous. Section 413 of The Pennsylvania Workmen's Compensation Act (Act), Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 772. The employer's second contention is that there was no competent evidence to support the referee's calculation of an average weekly wage of $150.00 pursuant to Section 309(e) of the Act, 77 P.S. § 582(e). The claimant raises a third issue, that of whether the employer's failure to present a case before the referee, the Board and this
Court, entitles the claimant to a penalty under Section 435(d) of the Act, 77 P.S. § 991.
We find it unnecessary to wade through the procedural morass occasioned by the litigation in this matter. Suffice it to say that in September of 1972, claimant suffered a disabling back injury while employed as a debt collector for the employer. He received total disability benefits until such time as these benefits were suspended by order of a referee which was affirmed on appeal by the Board and, on further appeal, affirmed by this Court. Glinka.
We now address the issues surrounding the lifting of the suspension of benefits pursuant to Section 413 of the Act and the calculation of the average weekly wage under Section 309(e) of the Act. Our scope of review is limited to a determination of whether constitutional rights have been violated, whether an error of law has been committed, or whether a necessary finding of fact was unsupported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa. C. S. § 704.
In Venanzio v. Workmen's Compensation Appeal Board (Eastern Express), 88 Pa. Commonwealth Ct. 204, 207, 489 A.2d 284, 286 (1985), this Court noted:
The burden on a claimant who petitions to have a suspension lifted is, of course, materially different from the burden on a claimant who petitions for reinstatement. In the former instance, the claimant is required only to demonstrate that the reasons for the suspension no longer exist. . . . Applying this rule to the instant case, we conclude that Claimant was required to demonstrate only that he remained totally disabled, not that he was again totally ...