527 A.2d 1100 | Pa. Commw. Ct. | 1987
Opinion by
Charles Freeman, Sr. (claimant) appeals an order of the Workmens Compensation Appeal Board (Board) which granted the modification petition of C. J. Langenfelder & Son (employer) and denied the claimants claim of concurrent employment under Section 309(e) of The Pennsylvania Workmens Compensation Act (Act), Act
Claimant suffered a work-related injury on July 12, 1983 for which he received total disability benefits pursuant to a notice of compensation payable. The employer filed a modification petition, alleging, inter alia, that light work was available which the claimant was capable or performing. In his answer, the claimant denied the employers claim and requested a review of his average weekly wage, alleging that he was entitled to weekly wages calculated on the basis of concurrent employment.
The referee found that the claimant had two concurrent employers until approximately two weeks prior to the injury when the second employer, A. J. Picone, went out of business; that the claimant had only one employer at the time of his injury; that claimants disability had changed from total to partial; and that the employer had shown that light work was available to the claimant as of May 17, 1984. The referee held that the claimant was entitled to partial disability benefits to be computed by using only his earnings from the employer.
Claimant initially contends that the referee erred as a matter of law in holding that claimant was not entitled to weekly wages based on concurrent contracts of employment. He does not contest the referees findings of fact on this issue, but argues that Section 309(e) is ambiguous with respect to the time period during which an employee is required to have concurrent contracts of employment and suggests that it should be interpreted as requiring concurrent employment within the year preceding the injury.
Section 309(e) states in pertinent part: “Where the employe is working under concurrent contracts with two or more employers, his wages from all such em
The claimant also contends that the referee erroneously placed the burden of proof on the claimant in contesting the employer’s claim of job availability. We agree. In his decision, the referee made the following pertinent findings:
9. The employer sustained its burden of proof.
10. Since Claimant adduced no medical evidence, the only issue that was actually contested by him was the method of determining his average weekly wage. He contended that his wage should have been calculated as though he had concurrent employment at the time of his injury. (Emphasis added.)
Order
And Now, this 26th day of June, 1987, the order of the Workmens Compensation Appeal Board, in the above-captioned matter, is affirmed to the extent that it bases the claimants wage calculation solely upon the claimants employment with C. J. Langenfelder & Son. The remainder of the Boards order is vacated and the matter shall be remanded for further proceedings consistent with this opinion.
Jurisdiction relinquished.