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MCGRAW-EDISON v. WORKMEN'S COMPENSATION APPEAL BOARD (ARDENO ET AL.) (09/26/88)

decided: September 26, 1988.

MCGRAW-EDISON, PETITIONER
v.
WORKMEN'S COMPENSATION APPEAL BOARD (ARDENO ET AL.), RESPONDENTS



Appeal from the orders of the Workmen's Compensation Appeal Board, in the cases of Tony Ardeno, No. A-92569; John Borda, No. A-92570; Salvadore Bruno, No. A-92571; Robert N. Clark, No. A-92572; William Congie, No. A-92573; Donald Cox, No. A-92574; Alcide Dufresne, Jr., No. A-92575; Jack E. Felix, No. A-92576; John Gostic, No. A-92577; Harry Hilderbrand, No. A-92578; John E. Hoffman, No. A-92579; Robert Korowicki, No. A-92580; Ralph Marino, No. A-92581; Michael Matalik, No. A-92582; Edward Mauser, No. A-92583; Andrew Miller, Jr. No. A-92584; John Piasente, No. A-92585; Frank R. Pratten, No. A-92586; Edwin Sherman, No. A-92587; Anthony Sivavec, No. A-92588; John Staley, No. A-92589; John Yanik, No. A-92590; Robert Yarkosky, No. A-92591 v. McGraw-Edison.

COUNSEL

Carl J. Smith, Jr., Ceisler, Richman, Sweet Law Firm, for petitioner.

Leonard P. Kane, Jr., Fried, Kane, Walters & Zuschlag, for respondent.

Judges Craig, Doyle and Palladino, sitting as a panel of three. Opinion by Judge Doyle. Judge Palladino dissents.

Author: Doyle

[ 120 Pa. Commw. Page 21]

Before us is the interlocutory appeal by permission of McGraw-Edison (Petitioner) from an order of the Workmen's Compensation Appeal Board (Board) directing Petitioner to reinstate partial disability benefits to several of its injured employees pursuant to Section 306(b) of The Pennsylvania Workmen's Compensation Act (Act),*fn1 and remanding for computation of those benefits.

This appeal actually involves twenty-three separate modification petitions filed by Petitioner and twenty-three separate reinstatement petitions filed by the individual Claimants (Claimants). All of the Claimants are employees of Petitioner and sustained injuries while in the course of their employment. Some Claimants were unable to work for a period of time and received compensation benefits for total disability. Some Claimants were able to return to light duty or restricted work immediately after their injuries. All Claimants, however, eventually returned to work at light duty or restricted duty positions, and all returned to work at jobs that paid less than their pre-injury average weekly wage. The Claimants were receiving partial disability compensation benefits equaling two-thirds of the difference between their pre-injury average weekly wage and their post-injury wage.

The unusual problem which now confronts us had its origin in a negotiated wage concession agreement of March 5, 1985, when all of Petitioner's hourly employees had their wages reduced. When the post-injury wages were reduced for the Claimants, the difference between their higher pre-injury average weekly wage and their now reduced post-injury wage, of course, became greater and accordingly, the amount of their partial

[ 120 Pa. Commw. Page 22]

    disability compensation benefits automatically increased. The result of this was that the Claimants received wages and compensation benefits which, when added together, totaled more than the average post -injury wages earned by employees performing Claimants' pre -injury jobs.

Petitioner filed a petition to modify the compensation benefits of the Claimants. Claimants, in turn, filed petitions for reinstatement asserting that the partial disability benefit calculation under Section 306(b) of the Act must be made using the pre-injury average weekly wage, and the post-injury earnings, regardless of the present earnings of the fellow employees.

In the proceeding before the referee, the parties agreed to bifurcate the legal issue involved from the factual determination of each case. The referee's decisions in favor of the Claimants were appealed by Petitioner. The Board, in affirming the decision of the referee relied on Section 306(b) of the Act which provides in part that:

[I]n no instance shall an employe receiving compensation under this section receive more in compensation and wages combined than a fellow employe in employment similar to that in which the ...


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