Appeal from the Order of the Workmen's Compensation Appeal Board in case of Charles Garlick v. Pedos Brothers Construction, No. A-70351.
Raymond F. Kiesling, with him Will & Keisling, for appellant.
Arthur J. Rinaldi, with him John E. O'Connor, Chief Counsel, State Workmen's Insurance Fund; and James N. Diefenderfer, for appellees.
Judges Crumlish, Jr., Kramer and Blatt, sitting as a panel of three. Judge Kramer did not participate in the decision. Opinion by Judge Blatt. Judge Kramer did not participate in the decision in this case. See Pa. R.a.p. 3102(d).
[ 31 Pa. Commw. Page 571]
Carol M. Garlick, the widow of Charles Garlick (claimant), appeals here from an order of the Workmen's Compensation Appeal Board (Board) which affirmed a referee's decision suspending payment of the claimant's disability compensation for a period of 32 months.
The claimant was injured in the course of his employment with the Pedos Brothers Construction Co. (employer) in 1963. He subsequently entered into a compensation agreement with the employer which provided for total disability compensation in the amount of $47.50 per week for an indefinite period. In 1968 the employer filed a termination petition alleging that the claimant could not be located and that his present disability status, therefore, could not be ascertained, and, following a hearing at which the claimant did not appear and at which the employer presented no evidence, a referee granted the employer's petition and terminated payments.
[ 31 Pa. Commw. Page 572]
In 1973 the claimant filed a claim petition which was treated by the compensation authorities as a petition for reinstatement, and two hearings were held before a referee. The employer offered no evidence, but the claimant introduced medical reports into evidence to substantiate the serious nature of his injury and provided a list of his earnings for the years 1968 through 1971. The referee decided that the order entered on the termination petition filed in 1968 was void because the employer had presented no evidence which would justify termination of the compensation, and, after examining the income data supplied by the claimant, the referee concluded that, although the claimant was not entitled to compensation for the period from January 1, 1969 to September 5, 1971, he was entitled to the applicable maximum benefits of $47.50 per week from and after September 6, 1971. The claimant died while the case was being appealed to the Board, which ultimately affirmed the referee's decision, and this appeal was brought by the claimant's widow (appellant).
Our scope of review in a workmen's compensation case is limited to a determination of whether or not constitutional rights were violated, an error of law was committed, or any necessary finding of fact was unsupported by substantial evidence. Jessop Steel Co. v. Workmen's Compensation Appeal Board, 10 Pa. Commonwealth Ct. 186, 309 A.2d 86 (1973).
The appellant argues here that the referee erred in suspending the claimant's compensation from January 1, 1969 to September 5, 1971. The referee's order does not explain the reasons for the suspension, but the Board's opinion indicates that it affirmed the suspension order because: (1) the evidence offered by the claimant before the referee indicated that he had earned disqualifying amounts of income for a period of four to five months immediately preceding September
[ 31 Pa. Commw. Page 5736]
, 1971; and (2) the suspension was proper for the balance of the period concerned because the claimant had failed to meet his burden of establishing his eligibility for the entire period. Our review of the record indicates, however, that, while a suspension of compensation for a portion of ...