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DIANE MENGEL v. WORKMEN'S COMPENSATION APPEAL BOARD (BOYER'S IGA (08/16/88)

decided: August 16, 1988.

DIANE MENGEL, PETITIONER
v.
WORKMEN'S COMPENSATION APPEAL BOARD (BOYER'S IGA, INC.), RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board, in the case of Diane Mengel v. Boyer's IGA, Inc., No. A-92236.

COUNSEL

Lester Krasno, for petitioner.

Paul J. Dufallo, Zimmerman, Lieberman & Derenzo, for respondent, Boyer's IGA, Inc.

Judges MacPhail, Smith, and Senior Judge Barbieri, sitting as a panel of three. Opinion by Judge Smith.

Author: Smith

[ 118 Pa. Commw. Page 583]

This is an appeal by Diane Mengel (Claimant) from a decision of the Workmen's Compensation Appeal Board (Board) which reversed the referee's order dismissing a termination petition and continuing benefits to Claimant. The issue presented is the effect of unemployment compensation benefits received by Claimant on the calculation of her average weekly wage for purposes of workmen's compensation.

Beginning in 1968, Claimant was employed as an office worker at the Foltz Trucking Company. In 1983, she was concurrently employed at the Boyer's IGA (Employer) store as a grocery bagger. In September of 1984, Foltz Trucking Company went out of business and Claimant was laid off whereupon she received unemployment compensation benefits at the rate of $136.00 per week. On February 1, 1985, Claimant suffered a work-related injury at Boyer's Supermarket. A notice of compensation payable was filed and Claimant began receiving workmen's compensation benefits at the rate of $112.00 per week.

On May 29, 1985, Claimant was employed by H. H. Fessler's Knitting Mills with average weekly earnings of $150.00 which were increased to $168.75 on September 1, 1985. Employer terminated Claimant's workmen's

[ 118 Pa. Commw. Page 584]

    compensation benefits as of May 29, 1985, based upon Claimant's return to work at no loss of earnings.

On July 16, 1985, Employer filed a termination petition contending that Claimant had returned to work without any further disability or loss of earnings or earning power. After a hearing on September 5, 1985, the referee found that Claimant's disability continued; that she could not return to her work as a grocery bagger; and that her earning power remained diminished. Findings of Fact Nos. 8-9. The referee dismissed employer's termination petition, and directed the employer to pay workmen's compensation of $112.00 per week to Claimant. The Board reversed the referee and ordered that payment of compensation be suspended effective May 29, 1985. The Board held that where disability continues with a loss of earning power but Claimant earns more than before her injury, benefits must be suspended.

Claimant argues that the Board erred as a matter of law in holding that Claimant was not entitled to a compensation rate based upon Claimant's combined pre-injury wages from Foltz Trucking and Boyer's IGA. Claimant further argues that she was entitled to partial disability benefits since the combined average weekly wages from Foltz Trucking and Boyer's IGA were greater than earnings from Claimant's new job. In support of her contention, Claimant relies upon the fact that the referee awarded benefits greater than Claimant's weekly wages of $96.85 from Boyer's IGA and that Boyer's agreement to pay $112.00 per week benefits was an acknowledgment of concurrent employment. Further, Claimant asserts that receipt of unemployment compensation due to her lay-off from Foltz ...


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