R. A. Gray & Co. v. McKenzie

PER CURIAM. Employer petitions for reconsideration of the opinion of this court, R. A. Gray & Co. v. McKenzie, 56 Or App 394, 641 P2d 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 P2d 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.