Joy Technologies, Inc. v. Workmen's Compensation Appeal Board

PELLEGRINI, Judge,

dissenting.

I respectfully dissent. I believe Claimant returned to work and was not entitled to benefits pursuant to Section 413 of the Workmen’s Compensation Act, 77 P.S. § 772.

Claimant was injured at work in 1980 and was receiving workmen’s compensation benefits when he purchased the Deer Meadows Campground in 1983. Claimant subsequently sold the campground in 1987 for a large profit. The Referee found that Claimant was not entitled to disability benefits during the four years that he owned the campground because he made *15profits during that time which were almost entirely attributable to his personal endeavors. The Board reversed, finding that any profit derived was the result of a capital investment and the labor of Claimant’s sons.

I would reverse the Board’s decision because the evidence of record indicates not only that Claimant was responsible for running the entire business, but he received compensation from the business, in addition to that which he received for his disability.

The profits received annually from the business were almost entirely the result of Claimant’s personal management of the campground. Although Claimant stated that he did very little physical labor, he testified that his primary duty related to the campground was supervising or managing the entire operation on a day-to-day basis. Claimant testified twice that he supervised the operation of the campground eight to ten hours per day, seven days a week, for a total of approximately seventy hours per week. (Notes of Testimony at 59a and 166a.) Additionally, while Claimant did not perform heavy physical labor, he stated that he coordinated activities for the campers, worked in the general store, made purchases for the store, cut the lawns, filled propane tanks for campers and sold firewood.

Merely because Claimant testified that he received no compensation from running the campground because he did not accept a salary does not mean that he did not receive value for his work. Claimant lived on the campground in a mobile home from May 1 through October 31 free of charge. He invested $94,000 of the profits from the operation of the campground in relocating the miniature golf course and building a swimming pool, thereby deferring his income. This deferral was realized when Claimant sold the campground for $825,000 in 1987, which he purchased in 1983 for $225,000, realizing a profit of $600,000. That profit also represents substantial compensation to Claimant that should be credited against the amount of workmen’s compensation he received during that period. Such a profit cannot merely be considered the fruits of a capital investment, because it is the result of *16Claimant’s substantial efforts in running the campground and making such a profit possible.

Accordingly, I respectfully dissent and would reinstate the decision of the Referee.