Matter of Compensation of McKenzie

645 P.2d 30 (1982)

57 Or.App. 426

In the matter of the Compensation of Joe McKenzie, Claimant. R.A. Gray & Company, Petitioner, v. JOE MCKENZIE, Respondent.

WCB Case No. 80-03508; CA A21273.

Court of Appeals of Oregon.

Petition for reconsideration April 7, 1982.

Decided May 19, 1982.

*31 Emil R. Berg and Wolf, Griffith, Bittner, Abbott & Roberts, Portland, for petition.

Before JOSEPH, C.J., and WARDEN and WARREN, JJ.

On petitioner's petition for reconsideration April 7, 1982.

PER CURIAM.

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.