Opinion
WCB Case No. 80-03508, CA A21273
On respondent's reconsideration filed April 7, reconsideration allowed; former opinion filed March 8 ( 56 Or. App. 394, 641 P.2d 672) affirmed as modified May 19, petition for review denied June 29, 1982 ( 243 Or. 340)
Judicial Review from Workers' Compensation Board.
On petitioner's petition for reconsideration filed April 7, 1982. Former opinion filed March 8, 1982, 56 Or. App. 394, 641 P.2d 672 (1982).
Emil R. Berg and Wolf, Griffith, Bittner, Abbott Roberts, Portland, for petition.
Before Joseph, Chief Judge, and Warden and Warren, Judges.
PER CURIAM
Petition for reconsideration allowed; former opinion affirmed as modified to provide that the commencement date for claimant's benefits for permanent and total disability is June 3, 1981.
Employer petitions for reconsideration of the opinion of this court, R. A. Gray Co. v. McKenzie, 56 Or. App. 394, 641 P.2d 672 (1982), which affirmed an order of the Workers' Compensation Board awarding claimant compensation for permanent and total disability. We modified the Board's order, changing the commencement date of claimant's award from June 3, 1981, to July 2, 1980.
Employer correctly points out that claimant's cross-appeal, in which he had asked for the earlier date for commencement of his benefits, was dismissed for late filing. Therefore, there was no cross-appeal. A respondent who has not cross-appealed cannot recover a more favorable judgment from the appellate court than that entered below. Gas-Ice Corporation v. Newbern, 263 Or. 227, 234, 501 P.2d 1288 (1972).
Our prior opinion is modified to provide that the commencement date for claimant's benefits for permanent and total disability is June 3, 1981, as found by the Board.
Affirmed as modified.