dissenting.
I respectfully dissent to the majority’s reversal of the Workers’ Compensation Appeal Board’s order which affirmed the Workers’ Compensation Judge’s decision that Appellant was not concurrently employed at the time of his injury.
The majority relies on Mengel v. Workmen’s Compensation Appeal Board (Boyer’s IGA Inc.), 118 Pa.Cmwlth. 582, 545 A.2d 992 (1988), for the proposition that receipt of unemployment compensation does not constitute concurrent compensation. However, in Mengel, the employer had gone out of business before the claimant was injured at her subsequent job. In the present case, Claimant was laid off on a day to day basis.
Here, Claimant was temporarily laid off from his first job when he was injured at the second. Evidence presented verified that Claimant was required as a condition of his unemployment compensation to call his employer every day to see if work was available for the next day. The Board concluded that this layoff was only temporary and that Claimant had a reasonable expectation that he would return to work. This constitutes a sufficient basis for distinguishing Mengel.
In Freeman v. Workmen’s Compensation Appeal Board (C.J. Langenfelder & Son), 107 Pa.Cmwlth. 138, 527 A.2d 1100, appeal denied, 517 Pa. 600, 535 A.2d 1058 (1987), this Court held that a claimant must have two or more employers at the time of injury to be entitled to a benefit calculated on concurrent wages. Here, Claimant fulfilled his contractual obligations with Employer II by calling in every day, and in fact did return to work before he was again disabled.
Accordingly, I would affirm the order of the Workers’ Compensation Appeal Board.