Economy Decorators, Inc. v. W.C.A.B. (Federici)

• Decision Date: 31 March 1986
• Citation: 506 A.2d 1357,96 Pa.Cmwlth. 208
• Parties: ECONOMY DECORATORS, INC., Petitioner, v. WORKMEN'S COMPENSATION APPEAL BOARD (FEDERICI), Respondents.
• Court: Pennsylvania Commonwealth Court

Page 1357

506 A.2d 1357

96 Pa.Cmwlth. 208

ECONOMY DECORATORS, INC., Petitioner, v. WORKMEN'S COMPENSATION APPEAL BOARD (FEDERICI), Respondents.

Commonwealth Court of Pennsylvania.

Submitted on Briefs Dec. 13, 1985.

Decided March 31, 1986.

Ronald F. Bove, Swartz, Campbell & Detweiler, Philadelphia, for petitioner.

Thomas F. McDevitt, Philadelphia, for respondents.

Before CRAIG and COLINS, JJ., and KALISH, Senior Judge.

COLINS, Judge.

Economy Decorators (employer) appeals an order of the Workmen's Compensation Appeal Board (Board), affirming the referee's award of workmen's compensation benefits for a heart attack suffered by Richard Federici (claimant). We affirm.

The material facts of this case are not in dispute and, accordingly, do not warrant recital. Suffice it to say that the claimant, a wallpaper hanger, was found to have suffered a compensable injury under The Pennsylvania Workmen's Compensation Act (Act). ¹ The referee awarded compensation for total disability in the amount of $227.50 per week from February 23, 1979, the date of claimant's heart attack, until his return to work on February 4, 1980. The referee suspended compensation from February 5, 1980 to December 31, 1980, having found that the claimant remained partially disabled but sustained no loss of earning power for that period. The referee then reinstated compensation from January 1, 1981 to December 31, 1981, in the amount of $196.50, or two-thirds of the claimant's weekly wage loss, computed as $294.74, and finally awarded compensation beginning January 1, 1982 at the rate of two-thirds of claimant's future loss in earnings. ² The Board affirmed. The employer's appeal to this Court followed on November 13, 1984. ³

Upon appeal, the employer concedes that the claimant suffered a compensable injury. The employer does contend, however, that the claimant returned to his pre-injury job without sustaining a loss in earning power attributable to his disability, such that the referee's reinstatement of compensation beginning January 1, 1981 was in error. Assuming, arguendo, that the claimant is entitled to a reinstatement of compensation, the employer contends that the referee erred in finding the claimant's pre-injury wage to be $449.60 per week and that the computation of subsequent benefits based on this figure was in error.

The law is settled that for purposes of workmen's compensation, the term disability is synonymous with a "loss of earning power." Wheeling-Pittsburgh Steel Corp. v. Workmen's Compensation Appeal Board (Smith), 70 Pa.Commonwealth Ct. 100, 452 A.2d 611 (1982); Carpentertown Coal and Coke Co. v. Workmen's Compensation Appeal Board, 52 Pa.Commonwealth Ct. 134, 415 A.2d 450 (1980). When this loss of earning power results from a medical condition related to the claimant's employment, the claimant suffers a disability compensable under the Act. Wheeling-Pittsburgh. Where there is a disability with a resultant loss of earning power but the employee receives as much for his services as he earned before the injury, payments of compensation must be suspended when the disability is not reflected in loss of wages. Cannon Boiler Works v. Workmen's Compensation Appeal Board (Norris), 58 Pa.Commonwealth Ct. 546, 428 A.2d 293 (1981).

In the case sub judice, the referee's reinstatement of compensation followed his finding that:

10. [f]or the period January 1, 1981 to December 31, 1981, claimant had gross earnings of $8,052.72 or an average weekly wage of $154.86 or a loss of $294.74 per week.

The evidence on record regarding the claimant's post-injury income is contained in a wage statement of gross earnings, offered into evidence by the employer, indicating the number of days worked by the claimant over consecutive multi-week periods. This statement indeed reveals that the claimant worked substantially fewer days in 1981 than in 1980. ⁴

The employer contends that any decreased earning power on the part of the claimant in 1981 as manifested by these wage statements was precipitated by an industry-wide work slowdown rather than the claimant's latent disability, thus rendering the claimant ineligible for a reinstatement of compensation.

In this regard, the employer offered the testimony of Norman Yerusalim, the company President, who testified that depressed economic conditions in that year resulted in decreased work availability and forced him to apportion all available work among his employees. Mr. Yerusalim stated that he in no way singled out the claimant to reduce his work load and that the claimant, in fact, never complained of difficulty in performing his work, that he refused offers to "lighten his load" and that he was anxious and able to accept additional overtime employment when available.

The referee did not address Mr. Yerusalim's testimony in his decision and the employer now argues that this omission represents a capricious disregard of competent evidence. The employer's allegations are without merit. The factfinder in a workmen's compensation case may accept or reject the testimony of any witness in whole or in part, and this evaluation on the part of the referee does not constitute a capricious disregard of competent evidence. Hoffman v. Workmen's Compensation Appeal Board (Mitchell Transport, Inc.), 87 Pa.Commonwealth Ct. 44, 485 A.2d 1235 (1985).

The claimant's testimony does not indicate whether or not the observed decline in earning power in 1981 is attributable to his disability. The claimant testified before the referee only once, on January 22, 1980, several weeks prior to his return to work. Similarly, the testimony of the claimant's medical witness is not illustrative of this point. This physician examined the claimant on November 1, 1979 and then opined that the claimant would be physically unable to return to his former position. The referee found, however, that the claimant returned to work with partial disability, although no loss of earning power until 1981. We must determine whether a reinstatement of compensation is proper where the record evidences reduced earnings but the claimant does not rebut the employer's allegation that the decrease is attributable to factors other than the claimant's continuing disability. Under the facts of this case, we believe it is.

Section 413 of the Act empowers the referee to reinstate an award or agreement provided that "where compensation has been suspended because the employee's earnings are equal to or in excess of his wages prior to the injury that payments may be resumed at any time during the period for which compensation for partial disability is payable unless it be shown that the loss in earnings does not result from the disability due to injury." 77 P.S. § 772. The status of the employer's liability under a workmen's compensation agreement or award continues irrespective of whether or not payments have ceased to be made. Busche v. Workmen's Compensation Appeal Board (Townsend and Bottum, Inc.), 77 Pa.Commonwealth Ct. 469, 466 A.2d 278 (1983). Where the employer is relieved of the payment of benefits during a period when the claimant resumes full earning power, albeit with continuing disability, the period of suspension inures entirely to the benefit of the employer; he cannot complain if a subsequent change in the status of the claimant's earning power revives his liability. D & T Brooks, Inc. v. Workmen's Compensation Appeal Board, 38 Pa.Commonwealth Ct. 223, 392 A.2d 895 (1978).

We find informative this Court's decisions in Schafer v. Workmen's Compensation Appeal Board (Lehigh Valley Man-Power Program), --- Pa.Commonwealth Ct. ---, 501 A.2d 708 (1985), Smith v. Workmen's Compensation Appeal Board (Futura Industries), 80 Pa.Commonwealth Ct. 508, 471 A.2d 1304 (1984) and Busche. In those cases, a partially disabled claimant was laid off from a modified job provided by the employer and sought a reinstatement of benefits. We held that where the claimant's disability continued, relieved only by...