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07/24/97 PAN BUILDING CORPORATION v. WORKMEN'S

July 24, 1997

PAN BUILDING CORPORATION, PETITIONER
v.
WORKMEN'S COMPENSATION APPEAL BOARD (THOMPSON), RESPONDENT



Appealed From No. A95-3024. State Agency Workmen's Compensation Appeal Board.

Before: Honorable Joseph T. Doyle, Judge, Honorable Bonnie Brigance Leadbetter, Judge, Honorable Charles P. Mirarchi, Jr., Senior Judge. Opinion BY Judge Doyle.

The opinion of the court was delivered by: Doyle

OPINION BY JUDGE DOYLE

FILED: July 24, 1997

Pan Building Corporation (Employer) appeals from a decision of the Workmen's Compensation Appeal Board (Board) which affirmed the decision of the Workers' Compensation Judge (WCJ) granting the reinstatement petition of Mark Thompson (Claimant).

On May 22, 1991, Claimant sustained an injury to his right eye while working as a construction laborer for Employer. A notice of compensation payable was subsequently filed on June 12, 1991, pursuant to which Claimant received compensation in the amount of $218.00 based on an average weekly wage of $238.18.

Claimant's compensation benefits were suspended by a supplemental agreement dated August 6, 1991, which included language indicating that Claimant had returned to work on August 6, 1991, at no loss of earnings. After temporarily returning to work for a brief period of time, Claimant was "permanently" laid off from Employer on September 12, 1991, and on October 21, 1991, Claimant filed a petition for the reinstatement of workers' compensation benefits.

On May 5, 1992, Claimant found employment with Tomko & Sons Plumbing Company through November 25, 1992, during which time his wages were equal to or in excess of his time-of-injury wages. Claimant was subsequently laid off from this position from November 26, 1992, through February 10, 1993, but worked again for Tomko from February 11, 1993, through May 25, 1993. Claimant was thereafter laid off from May 26, 1993 through July 26, 1993.

From July 27, 1993, through October 15, 1993, Claimant worked for thirty hours a week for the Allegheny County Housing Authority at a rate of $5.25 per hour. Claimant was again laid off from October 16, 1993, through March 23, 1994. Claimant subsequently worked for Goodwill Industries from March 24, 1994, through May 11, 1994, at a rate of $5.00 per hour for forty hours per week. Claimant was subsequently laid off and has not worked since May 11, 1994.

By decision and order dated July 11, 1995, the WCJ granted Claimant's reinstatement petition and ultimately held as follows:

Claimant is entitled to total weekly disability compensation from September 12, 1991 to May 5, 1992 at the rate of $218.00 per week, a suspension of compensation from May 5, 1992 through November 25, 1992, total weekly disability compensation again from November 26, 1992 through February 11, 1993, a suspension of compensation from February 11, 1993 through May 25, 1993, total weekly disability compensation from May 26, 1993, through July 26, 1993, partial weekly disability compensation from July 27, 1993 through October 15, 1993 at the rate of 2/3 times his wage loss, total weekly disability from October 16, 1993 through March 23, 1994, partial weekly disability compensation from March 24, 1994 through May 11, 1994 at 2/3 times his wage loss, and then total weekly disability compensation from May 12, 1994 onward.

(WCJ's Decision at 4.)

Employer subsequently appealed from the WCJ's decision to the Board, which affirmed, and this appeal ensued.

Employer's principal argument on appeal is that the WCJ erred in concluding that Claimant was entitled to workers' compensation benefits for the periods during which he was laid off and/or had a loss of earnings because Claimant failed to establish that his work-related injury was the cause of his disability, i.e., his loss ...


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