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PENNSYLVANIA POWER COMPANY v. WORKMEN'S COMPENSATION APPEAL BOARD (CONNER) (10/19/89)

filed: October 19, 1989.

PENNSYLVANIA POWER COMPANY, PETITIONER
v.
WORKMEN'S COMPENSATION APPEAL BOARD (CONNER), RESPONDENTS; PENNSYLVANIA POWER COMPANY, PETITIONER V. WORKMEN'S COMPENSATION APPEAL BOARD (HIGGINS), RESPONDENTS; PENNSYLVANIA POWER COMPANY, PETITIONER V. WORKMEN'S COMPENSATION APPEAL BOARD (CONNER), RESPONDENTS; PENNSYLVANIA POWER COMPANY, PETITIONER V. WORKMEN'S COMPENSATION APPEAL BOARD (SUDAK, III), RESPONDENTS; PENNSYLVANIA POWER COMPANY, PETITIONER V. WORKMEN'S COMPENSATION APPEAL BOARD (HARGREAVES), RESPONDENTS; PENNSYLVANIA POWER COMPANY, PETITIONER V. WORKMEN'S COMPENSATION APPEAL BOARD (GLENN), RESPONDENTS; PENNSYLVANIA POWER COMPANY, PETITIONER V. WORKMEN'S COMPENSATION APPEAL BOARD (RUTH), RESPONDENTS; PENNSYLVANIA POWER COMPANY, PETITIONER V. WORKMEN'S COMPENSATION APPEAL BOARD (NEILSON), RESPONDENTS; PENNSYLVANIA POWER COMPANY, PETITIONER V. WORKMEN'S COMPENSATION APPEAL BOARD (HILL), RESPONDENTS; PENNSYLVANIA POWER COMPANY, PETITIONER V. WORKMEN'S COMPENSATION APPEAL BOARD (ANDERSON), RESPONDENTS; PENNSYLVANIA POWER COMPANY, PETITIONER V. WORKMEN'S COMPENSATION APPEAL BOARD (ZIRILLO), RESPONDENTS; PENNSYLVANIA POWER COMPANY, PETITIONER V. WORKMEN'S COMPENSATION APPEAL BOARD (TATE), RESPONDENTS; PENNSYLVANIA POWER COMPANY, PETITIONER V. WORKMEN'S COMPENSATION APPEAL BOARD (HULME), RESPONDENTS; PENNSYLVANIA POWER COMPANY, PETITIONER V. WORKMEN'S COMPENSATION APPEAL BOARD (FILIPPELLI), RESPONDENTS; PENNSYLVANIA POWER COMPANY, PETITIONER V. WORKMEN'S COMPENSATION APPEAL BOARD (SPRANKLE), RESPONDENTS



Appeal from PETITION FOR REVIEW, (WORKMEN'S COMPENSATION).

COUNSEL

Harry A. Flannery, Esq., New Catle, Pennsylvania, FOR PETITIONER.

Bruce E. Woodske, Esq., Beaver, Pennsylvania, FOR RESPONDENTS.

Before: Honorable James Crumlish, Jr., President Judge, Honorable James Gardner Colins, Judge, Honorable Emil E. Narick, Senior Judge.

Author: Narick

[ 129 Pa. Commw. Page 226]

OPINION BY SENIOR JUDGE EMIL E. NARICK

Before this Court is a petition for review filed by Pennsylvania Power Company (Penn Power)*fn1 from orders of the Workmen's Compensation Appeal Board (Board) which affirmed referee awards of partial disability benefits to fifteen employees of Penn Power: Bruce Conner, Richard Higgins, Elwood J. Conner, Michael Sudak, III, Omar S.

[ 129 Pa. Commw. Page 227]

Hargreaves, Chuck Glenn, Richard I. Ruth, Michael Neilson, John Hill, Ronald Anderson, Rocky Zirillo, Raymond Tate, Frederick R. Hulme, Pasquale J. Filippelli, and Harold A. Sprankle (collectively referred to as employees) We affirm.

Each of the employees suffered a work-related injury while employed with Penn Power. Each also later returned to his position with Penn Power with a residual disability. For a period of time after their return to work, Penn Power refused available overtime work to these employees as a rehabilitative measure directed by its internal policy. These employees all had a history of working overtime. The referee awarded partial disability benefits to the employees, based upon the average amount of compensation) earned by fellow employees in similar employment. The Board affirmed and Penn Power petitioned to us for review.*fn2

Section 306(b) of The Pennsylvania Workmen's Compensation Act (Act), Act of June 2, 1915, P.L. 736, as amended, 77 P.S. ยง 512 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 injured employe was engaged at the time of the injury." (Emphasis added.)

Penn Power asserts that the Board erred in affirming the grant of benefits because these employees received more in compensation and wages than "a fellow employee." The grant of benefits was based upon the average of fellow worker wages. Penn Power argues that the language of Section 306(b) mandates that compensation and wages of the employee receiving partial disability benefits, who continues to work ...


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