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WORKMEN'S COMPENSATION APPEAL BOARD COMMONWEALTH PENNSYLVANIA AND HERBERT H. PENN v. P.M.A.I.C. AND MCGEE MEMORIAL HOSPITAL (02/05/76)

decided: February 5, 1976.

WORKMEN'S COMPENSATION APPEAL BOARD OF THE COMMONWEALTH OF PENNSYLVANIA AND HERBERT H. PENN
v.
P.M.A.I.C. AND MCGEE MEMORIAL HOSPITAL, APPELLANTS



Appeal from the Order of the Workmen's Compensation Appeal Board in case of Herbert H. Penn v. McGee Memorial Hospital, No. A-69433.

COUNSEL

Howard M. Ellner, with him John F. McElvenny, for appellants.

Edward F. Silva, with him Jack E. Feinberg, and James N. Diefenderfer, for appellees.

Judges Kramer, Wilkinson, Jr., and Mencer, sitting as a panel of three. Opinion by Judge Wilkinson.

Author: Wilkinson

[ 23 Pa. Commw. Page 204]

On June 9, 1960, Herber H. Penn (Penn) suffered a back injury while in the course of his employment with McGee Memorial Hospital (Hospital). Pursuant to an agreement, Penn was paid total disability compensation from June 10, 1960, to October 9, 1962. However, alleging a recurrence of the injury, Penn filed a petition for modification on April 10, 1964, and obtained reinstatement

[ 23 Pa. Commw. Page 205]

    of total disability benefits beginning on June 29, 1964, and continuing for an indefinite period. The Hospital, on March 8, 1971, filed a petition to terminate compensation alleging that Penn's total disability had ceased on or before February 22, 1971.

Several hearings were held before a referee at which uncontradicted medical testimony was presented by the Hospital regarding the physical capability of Penn to engage in gainful employment. The Hospital also introduced evidence through testimony and exhibits that Penn had been working at various jobs from 1964 to 1971.*fn1 Penn, in his testimony, however, denied holding any employment except during an approximately six-week period in 1971. On November 13, 1974, the referee filed a decision holding that Penn's disability was reduced to 35% as of June 15, 1971, and made the following findings of fact in support thereof:

"8. At the hearings held on this Petition, Defendant [Hospital] presented competent medical evidence through Dr. William Tomasco, that as of 6/15/71, Claimant's [Penn's] disability was 35%, and that Claimant [Penn] was able to perform gainful work with some limitations on his movements, and restrictions on lifting anything over 50 pounds.

"9. Defendant [Hospital] presented certain evidence in an attempt to show that Claimant [Penn] was able to perform his regular duties without any disability; but this evidence was of a 'hearsay' nature, and therefore could not, despite its persuasive

[ 23 Pa. Commw. Page 206]

    character, support any findings that Claimant [Penn] had fully recovered from ...


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