Opinion

Harper v. Workmen's Compensation Appeal Board

  • 162 Pa. Commw. 461
  • 639 A.2d 890
  • 1994 Pa. Commw. LEXIS 113
Court
Commonwealth Court of Pennsylvania
Filed
Mar 10, 1994
Status
Published
Author
Pellegrini
On the bench
Friedman, Lord, Pellegrini
Cited by
1 cases
Authority
More cited than 19.4%

The opinion

PELLEGRINI, Judge,

dissenting.

I respectfully dissent. Because Claimant was still earning her pre-injury hourly wage of $12 after she returned to work, she did not prove a loss of earning power simply because she was no longer being paid overtime in addition to her hourly wage. As a result, the Board found that she was entitled to $427.12 in partial benefits.

Claimant stipulated that the difference between her present wages and her pre-injury wages was due to the unavailability of overtime due to economic conditions and not due to her disability. 1 Even though Claimant still makes her pre-injury hourly wage, works normal shifts, and could work overtime if available, the majority affirms the Board, holding that because at the time Claimant originally was disabled, her wages were inflated by the amount of overtime worked, she has lost her earning power. This reasoning, however, produces a result unintended by the Workmen’s Compensation Act.

Under 77 P.S. § 772, the resumption of suspended benefits may not be granted when the loss in earnings is not the result of the disability. As our Supreme Court held in Lash v. Workmen’s Compensation Appeal Board (Jablonski), 491 Pa. 294 , 420 A.2d 1325 (1980), when interpreting The Pennsylvania Workmen’s Compensation Act (Act), Act of June 2,1915, P.L. 736, as amended, 77 P.S. §§ 1-1031, the word “disability” is synonymous with “loss of earning power.” “Disability” may also relate to “loss of earnings.” Yoder v. United Benefit Life Ins. Co., 171 Pa.Superior Ct. 18, 90 A.2d 399 (1952). Here, Claimant admits that her inability to earn the identical wages she made prior to her injury is due to the unavailability of overtime, not her disability.

Claimant is back to work earning the identical hourly wage she made before her injury, and if the economy improves, has the potential to work the same overtime that she worked before her injury. Her earning power has not been affected by her disability. Because the Act is designed to award benefits to claimants who have a loss of earning power, not to provide additional income for those individuals able to return to work and earn pre-injury wages, Claimant should not be awarded additional benefits to make up the difference for overtime work that is no longer available.

Because 77 P.S. § 772 provides that only earnings lost as a result of a disability are compensable, I disagree with the majority and respectfully dissent.

. The Referee's Finding of Fact No. 1 states that on September 23, 1991, a notice of compensation payable was filed with the Bureau of Workers’ Compensation setting forth that the Claimant suffered a work-related injury in the nature of bilateral mild tendinitis on August 12, 1991.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

A word about cookies

We need a few to keep you signed in and the library working. The rest help us see which pages people use and where they get stuck. They stay off unless you say yes.