Cohen v. Workmen's Compensation Appeal Board

649 A.2d 174, 168 Pa. Commw. 103, 1994 Pa. Commw. LEXIS 578
CourtCommonwealth Court of Pennsylvania
DecidedOctober 12, 1994
StatusPublished
Cited by2 cases

This text of 649 A.2d 174 (Cohen v. Workmen's Compensation Appeal Board) is published on Counsel Stack Legal Research, covering Commonwealth Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cohen v. Workmen's Compensation Appeal Board, 649 A.2d 174, 168 Pa. Commw. 103, 1994 Pa. Commw. LEXIS 578 (Pa. Ct. App. 1994).

Opinion

SMITH, Judge.

Stanley W. Cohen (Claimant) petitions for review of the September 21, 1993 order of the Workmen’s Compensation Appeal Board (Board) which affirmed the referee’s decision granting his claim petition for workers’ compensation benefits for periods of total and partial disability against the Jewish Community Center (Employer) pursuant to The Pennsylvania Workers’ Compensation Act (Act), Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1-1031. The issues presented include whether the Board, in affirming the referee, erred as a matter of law and ignored substantial competent testimony in finding that what Claimant terms a “gratuity” which he received from a Temple for services as a cantor constituted earnings and evidence of Claimant’s earning capacity supporting a change in his condition from total to partial disability on January 1, 1984.

Claimant testified that he was employed by Employer as a controller and in November 1983, he filed a claim petition alleging that unreasonable job demands, inhumane treatment, and a pattern of harassment over a period of time led to his acute duodenal ulcer and emotional distress. At the hearing before the referee, Claimant presented evidence that he also suffered from work-related hypertension and arrhythmia. Claimant further testified that since 1981, he has been a cantor at a Temple where he receives funds on a monthly basis as a parsonage or housing allowance and that since his alleged disability, he has received income by preparing tax returns and performing accounting work. The referee found that the psychological stress Claimant experienced while employed by Employer caused an aggravation injury of Claimant’s pre-existing ulcer rendering him totally disabled from October 19, 1983 through January 25, 1984; and Claimant failed to prove that he suffered any mental or psychic disorder or that he was mentally or psychologically disabled as a result of job stress.

The Board affirmed the referee’s order; however, this Court vacated the Board’s order and remanded the matter to the referee to determine:

(1) Whether Claimant suffers from work-related hypertension and arrhythmia; and, if so, whether either condition renders Claimant totally or partially disabled; and, if partially disabled, whether work is available to Claimant within his physical capabilities; and,
(2) Whether there is substantial competent credible evidence to establish that Claimant’s physical disability either ceased altogether or partially, taking into consideration the ulcer disease, hypertension and arrhythmia; and, if so, the date on which Claimant was no longer, in any way, physically disabled or the date on which Claimant became partially disabled; and, if partially disabled, whether work is available to Claimant within his physical capabilities.

Cohen v. Workmen’s Compensation Appeal Board (Jewish Community Center of Greater Philadelphia) (No. 1637 C.D.1989, filed April 25, 1990), slip op. at 6 (footnote omitted).

[176]*176Referee Olin took no additional evidence or testimony on remand and found that the work stress caused by employment with Employer triggered Claimant’s hypertension and arrhythmia requiring medical evaluation and treatment. Claimant’s work injuries (i.e., a reactivated ulcer condition, hypertension, and arrhythmia) while stable after January 25, 1984, had not fully resolved and required control through medication and avoidance of stressful conditions; the medication necessary to treat Claimant’s conditions affected his ability to concentrate; and any exposure to stress including return to prior work duties would exacerbate Claimant’s ulcer and blood pressure as well as trigger arrhythmia, all to the detriment of his physical health. Referee Olin affirmed the initial referee’s finding regarding the amount Claimant received as a cantor1 and further found that since January 25, 1984, Claimant earned income preparing tax returns and performing accounting functions for individuals. Referee Olin concluded that Claimant was totally disabled from October 19,1988 to December 31, 1983, and partially disabled from January 1, 1984 for a period of five hundred weeks. The Board affirmed his decision.

This Court’s scope of review of the Board’s decision is limited to a determination of whether constitutional rights have been violated, an error of law has been committed, or whether necessary findings of fact are supported by substantial evidence. See Russell v. Workmen’s Compensation Appeal Board (Volkswagen of America), 121 Pa.Commonwealth Ct. 436, 550 A.2d 1364 (1988). Specifically, Claimant contends that the referee and Board erred as a matter of law in failing to award continuing total disability benefits until his full recovery or until he is capable of returning to work at the same or alternate employment.

In a claim petition, the claimant has the burden to prove the existence and continuance of a work-related injury which resulted in a loss of earning power until the referee renders a decision in the matter. Rossi v. Workmen’s Compensation Appeal Board (City of Hazelton), — Pa.Commonwealth Ct. -, 642 A.2d 1153 (1994). Earning power is the ability to earn income, and refers generally to the capacity to perform an occupation or obtain remunerative employment. Chichester School District v. Workmen’s Compensation Appeal Board (Fox), 140 Pa.Commonwealth Ct. 224, 592 A.2d 774 (1991). Thus the determinative question is whether Claimant’s additional remuneration from the Temple and tax services can be considered as evidence of his earning power.

Claimant argues that the referee and Board erred as a matter of law in concluding that since board and lodging are included in the computation of average weekly wage, the amount which Claimant received from the Temple must also be considered income for partial disability purposes. Claimant contends that after his injury there was no increase in his wages, and he has suffered a loss of earning power and loss of earning capacity from October 19, 1983, the date of his injury, to the present.

Section 306(b) of the Act, 77 P.S. § 512, provides the schedule of compensation for partial disability and states in pertinent part:

For disability partial in character ... sixty-six and two-thirds per centum of the difference between the wages of the injured employe, as defined in section three hundred and nine, and the earning power of the employe thereafter; but such compensation shall not be more than the maximum compensation payable. This compensation shall be paid during the period of such partial disability ... but for not more than five hundred weeks.

The “earning power of the employe thereafter” in Section 306(b) is not limited to earning power which is first obtained after the injury. It can also be earning power from a job held at the time of the injury. In Fronczak v. Workmen’s Compensation Appeal Board, 157 Pa.Commonwealth Ct. 374, 629 A.2d 1060 (1993), this Court noted that had [177]

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649 A.2d 174, 168 Pa. Commw. 103, 1994 Pa. Commw. LEXIS 578, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cohen-v-workmens-compensation-appeal-board-pacommwct-1994.