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WORKMEN'S COMPENSATION APPEAL BOARD AND WALTER CLYMIRE v. H.P. FOLEY COMPANY AND LIBERTY MUTUAL INSURANCE COMPANY (04/28/75)

decided: April 28, 1975.

WORKMEN'S COMPENSATION APPEAL BOARD AND WALTER CLYMIRE, APPELLEES,
v.
H.P. FOLEY COMPANY AND LIBERTY MUTUAL INSURANCE COMPANY, INSURANCE CARRIER, APPELLANTS



Appeal from the Order of the Workmen's Compensation Appeal Board in case of Walter Clymire v. H.P. Foley Company, No. A-68201.

COUNSEL

Clem R. Kyle, with him Thomas J. Ferris, for appellants.

Hymen Schlesinger, with him Isadore Schlesinger, and James N. Diefenderfer, for appellees.

President Judge Bowman and Judges Crumlish, Jr. and Mencer, sitting as a panel of three. Opinion by Judge Crumlish, Jr.

Author: Crumlish

[ 18 Pa. Commw. Page 541]

Walter Clymire (Claimant) was employed by H.P. Foley Company (Appellant) on and prior to September 12, 1969, as a journeyman lineman earning an average weekly wage of $275.00. On September 12, 1969, while in the course of his employment, he slipped and fell into a hole causing accidental injuries to his right knee, right hip, right sciatic nerve and a sacroiliac sprain.

A compensation agreement was executed providing for total disability payments to be paid to Claimant at the rate of $60.00 per week from September 12, 1969. Subsequently

[ 18 Pa. Commw. Page 542]

    on April 27, 1970, Appellant filed a termination petition alleging that Claimant was able to return to work as of January 10, 1970. A hearing was set to determine the merit of the petition, at which Appellant's medical witness testified that he examined Claimant on January 9, 1970, and, in his opinion, Claimant was able to return to work. However, Claimant's medical witness testified that he found Claimant to be suffering from a 35-40% disability. An order was entered upon the petition terminating compensation. On appeal, the Workmen's Compensation Appeal Board (Board) remanded for the purpose of enabling the production of a work record and another medical specialist to determine if the disability had ceased. This time, the referee determined that Claimant suffered a 40% disability and reinstated and suspended compensation for the appropriate compensable weeks.

Appeal was again taken to the Board. The Board held that the finding by the referee of a 40% partial disability was based on competent evidence and concluded that the termination petition should not be granted, but further held that, in fact, total disability should have been awarded in light of our recent pronouncement in United States Steel Corporation v. Workmen's Compensation Appeal Board and Muniz, 10 Pa. Commonwealth Ct. 67, 308 A.2d 200 (1973), because Appellant had failed to show the availability of work for Claimant. This appeal followed.

Appellant's sole contention on appeal is that the Board erred in deleting the referee's sixth finding of fact and all the conclusions of law, and substituting its own seventh and eight findings of fact and conclusions of law without taking additional evidence in apparent disregard of Universal Cyclops Steel Corporation v. Krawczynski, 9 Pa. Commonwealth Ct. 176, 305 A.2d 757 (1973). We must disagree.

Since Universal Cyclops we have repeatedly said that the referee is the sole judge of credibility and absent receipt of additional ...


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