18 Pa. Commw. 22 | Pa. Commw. Ct. | 1975
Opinion by
These are appeals by the Modern Cooler Company (employer) from two successive decisions of the Workmen’s Compensation Appeal Board (Board) modifying the referee’s order which had dismissed the employer’s petition to terminate compensation to LeRoy Driscoll (claimant).
On December 21, 1961, the employer entered into an agreement
The factual background of this case is best summarized by the referee’s findings following hearings held
“1. Claimant suffered a torn rotator cuff in his right shoulder due to an accident sustained on November 27, 1961 when claimant and a fellow employee were lifting an ice cube machine weighing four hundred (400) pounds to a height of forty-six (46) inches, while in employ of defendant, (Modern Cooler Company) upon which the Agreement of Compensation, above referred to, is based.
“2. Claimant returned to his former employment as a refrigeration — air conditioning mechanic on or about April 30, 1962 and continued to work in that capacity at the same hourly rate of pay until December 7, 1962.
“3. Claimant was given less work by his employer than heretofore, commencing about October 19, 1962 and such reduced work resulted in a decrease, because of the claimant’s impaired physical condition, in claimant’s earnings, for this employer from his wage of $174.00 per week at the time of the accident to $104.40 per week.
“4. Claimant was separated from his position at defendant-employer on December 7, 1962 and because of his limited physical capacity was unemployed, except for sporadic jobs, until August 12, 1963 when he became employed as a refrigeration mechanic for the United States Naval Development Center.
“5. Claimant’s wages at the United States Naval Development Center at the time of his initial employment there, was $2.93 per hour for a forty hour week as compared to $4.35 per hour earned during his employ with defendant, or about a 33 % decrease in earning power.
“6. Claimant’s duties at his aforesaid new employment do not require lifting of over fifty pounds. A limitation of 150 pounds lifting was placed upon*26 claimant by the defendant’s orthopedic surgeon who had repaired claimant’s right rotator cuff which had been injured in his accident of November 27, 1961.
“7. Claimant was required to lift equipment in excess of one hundred fifty pounds in performing his duties for defendant.
“8. Defendant and/or its insurance carrier have failed to show that work of a selected nature limited to less than one hundred fifty pounds of lifting in the refrigeration — air conditioning industry was available to a person having claimant’s physical condition and vocational training, at a wage rate equal to claimant’s former earning capacity.”
In denying the employer’s termination petition the referee set forth a compensation schedule, which was amended by the Board in two successive decisions so as to include partial disability payments running from October 19, 1962 to July 4, 1969. The employer has appealed from both decisions, the first of which is now rendered moot inasmuch as the second suspended it.
On the termination petition the employer must sustain the burden of proving that the disability for which he earlier agreed to make payments now no longer exists. Foster Wheeler Corp. v. Workmen’s Compensation Appeal Board, 13 Pa. Commonwealth Ct. 45, 317 A.2d 922 (1974). And where the referee and the Board have found against the party having the burden of proof, review by this Court is to determine whether the findings are consistent with each other and with the conclusions of law, and the Board’s order can be sustained without a capricious disregard of competent evidence. Periodical Press Corp. v. Workmen’s Compensation Appeal Board, — Pa. Commonwealth Ct. — 331 A.2d 605 (1975).
The employer argues here that a finding of partial disability is not supported in the record and that, even if such finding were supported, the method here used for the computation of benefits was in error. In determin
The schedule of payments as modified by the Board included compensation at varying rates over different periods from October 18, 1962 to July 4, 1969. This included payments for a time when the claimant was still with the employer at a reduced workload, at another time thereafter when he was also receiving unemploy
That payments were likewise approved for the period while the claimant was receiving unemployment compensation, i.e. from December 8, 1962 to at least March 8, 1963, was also not in error. Such overlapping coverages are clearly permitted. Whitehead v. Casey Building Wreckers, Inc., 6 Pa. Commonwealth Ct. 256, 294 A.2d 215 (1972).
It follows, therefore, that we must issue the following:
Order
And Now, this 17th day of March, 1975, it is hereby ordered that judgment be entered on behalf of LeRoy Driscoll and against the Modern Cooler Company and/or Security Insurance Group whereby they are directed to pay to LeRoy Driscoll workmen’s compensation benefits for partial disability in accordance with the following schedule:
*30 For the Period At the Weekly Rate
October 19, 1962 to December 7, 1962 $21.41
December 8, 1962 to August 11, 1963 32.50
August 12, 1963 to November 9, 1963 32.50
November 10, 1963 to February 8, 1964 32.50
February 9, 1964 to May 9, 1964 32.50
May 10, 1964 to November 7, 1964 32.50
November 8, 1964 to February 6, 1965 31.67
February 7, 1965 to August 6, 1965 30.93
August 7, 1965 to November 6, 1965 27.47
November 7, 1965 to February 5, 1966 26.31
February 6, 1966 to November 5, 1966 25.33
November 6, 1966 to February 4, 1967 23.37
February 5, 1967 to November 4, 1967 22.13
November 5, 1967 to February 3, 1968 17.56
February 4, 1968 to November 2, 1968 18.40
November 3, 1968 to February 1, 1969 13.68
February 2, 1969 to July 4, 1969 6.13
Interest is to be assessed on the above Award at a rate of six percent per annum.
. Pursuant to The Pennsylvania Workmen’s Compensation Act, Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §1 et seq.
. Section 306 (b) of The Pennsylvania Workmen’s Compensation Act, Act of June 2, 1915, P.L. 736, as amended by the Act of February 28, 1956, P.L. (1955) 1120, §1.