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DANIEL VISINTIN v. WORKMEN'S COMPENSATION APPEAL BOARD (HALE PUMP COMPANY) (06/29/89)

decided: June 29, 1989.

DANIEL VISINTIN, PETITIONER,
v.
WORKMEN'S COMPENSATION APPEAL BOARD (HALE PUMP COMPANY), RESPONDENTS



PETITION FOR REVIEW (WORKMEN'S COMPENSATION)

COUNSEL

Marc S. Jacobs, Galfand, Berger, Senesky, Lurie & March, Philadelphia, for petitioner.

Peter J. Weber, Andrew E. Greenberg, Rawle & Henderson, Philadelphia, for respondents.

Craig and Colins, JJ., and Barbieri, Senior Judge.

Author: Barbieri

[ 127 Pa. Commw. Page 246]

Petitioner in this workmen's compensation case, Daniel Visintin, (Claimant), originally sought review by us of an order of the Workmen's Compensation Appeal Board (Board), which affirmed a referee's decision on several issues concerning Claimant's average weekly wage and his partial disability rate of compensation payments. This Court recorded a disposition of that appeal in an opinion filed January 20, 1989, Visintin v. Workmen's Compensation Appeal Board (Hale Pump Company), 553 A.2d 477 (1989). Subsequently, an application for reargument filed by Petitioner was treated by the Court, by order dated March 13, 1989, as an application for reconsideration and granted as such on that date. On reconsideration, the revised disposition of this Court is presented in the following opinion which will be substituted for the previous one and it will be so ordered.

It is undisputed that Claimant suffered serious and continuing disability from injuries sustained on June 30, 1981 while in the employ of Hale Pump Company, Employer, as a radial drill press operator, with average weekly wages computed and fixed in a prior referee's decision at $757.00, including overtime. Claimant's original and persisting disability arises from back conditions described by the referee as "lumbo-sacral sprain and strain," sustained "while lifting a casting weighing approximately (70) seventy pounds." Referee's Finding of Fact No. 2. Weekly benefits were paid pursuant to a Notice of Compensation Payable dated July 21, 1981 at the rate of $262.00*fn1 per week commencing July 1, 1981. The prior Termination Petition was filed by Employer on August 18, 1981, and resulted in a referee's decision dated July 1, 1983. In that decision as recorded in

[ 127 Pa. Commw. Page 247]

Finding No. 3 by the referee in this case, the referee in the former decision had found:

Referee's decision dated May 15, 1986.

The referee also found, in the decision in the instant case, as follows:

4. The referee further found that beginning March 2, 1982, work became available in the Delaware Valley area within claimant's vocational, educational and physical limitations paying $180.00 per week. Your Honor*fn2 awarded claimant the maximum partial disability rate of $262.00 per week.

5. The Referee accepts Dr. Pearlstein's conclusion that claimant was and still is incapable of performing his original job as a radial drill press operator.

6. Claimant returned to work for defendant as a NC lathe trainee on October 4, 1982.

7. The average number of weekly overtime hours available to radial drill press operators in defendant's employ decreased drastically during the First Quarter of 1982. Your Honor adopts as a finding of fact defendant's Table I, attached hereto, exemplifying this. Therefore, the correct 306 wage cap is the average weekly wage of radial drill press operators Hughey, Thompson, Nichols and Loehr.

8. The Referee accepts as a finding of fact Tables II through V, attached hereto, which determine the average weekly wage of these radial drill press operators from the fourth quarter of 1982 through the second quarter of 1984.

[ 127 Pa. Commw. Page 2489]

. The Referee accepts as a finding of fact Table VII, attached hereto, which calculates the four radial drill press operators' average weekly wage from the third quarter of 1982 until the second quarter of 1984. Your Honor accepts the last column, entitled "Co-employees' A.W.W." as the appropriate wage cap for each quarter calculated, i.e., 414.38 (4th, 1982); 400.29 (1st, 1983); 462.69 (2nd, 1983); 393.74 (3rd, 1983); 433.28 (4th, 1983); 453.86 (1st, 1984) and 568.16 (2nd, 1984).

10. The Referee accepts as a finding of fact, Table VI, attached hereto, which calculates claimant's average weekly wage as a NC lathe operator from the fourth quarter of 1982 until the second quarter of 1984.

11. The Referee accepts as a finding of fact, Table VIII, attached hereto, which calculates claimant's correct compensation entitlement for each quarter calculated, i.e., 43.90/wk (4th, 1982); 15.57/wk (1st, 1983); 9.38/wk (2nd, 1983); 0.00/wk ...


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