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ATLANTIC RICHFIELD CO. v. COMMONWEALTH PENNSYLVANIA (10/16/78)

decided: October 16, 1978.

ATLANTIC RICHFIELD CO., PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, WORKMEN'S COMPENSATION APPEAL BOARD AND PASQUALE INVERSO, RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in case of Pasquale Inverso v. Atlantic Richfield Co., No. A-72600.

COUNSEL

David L. Pennington, with him William F. Sweeney, and Harvey, Pennington, Herting & Renneisen, Ltd., for petitioner.

Arthur M. Harrison, with him James N. Diefenderfer, for respondents.

Judges Wilkinson, Jr., Rogers and Craig, sitting as a panel of three. Opinion by Judge Wilkinson, Jr.

Author: Wilkinson

[ 38 Pa. Commw. Page 141]

This is an appeal from a decision of the Workmen's Compensation Appeal Board (Board) which affirmed

[ 38 Pa. Commw. Page 142]

    a referee's denial of a termination petition filed by the petitioner. We affirm.

Pasquale Inverso (hereafter referred to as claimant) was employed by the petitioner as a truck driver. On June 18, 1974, claimant suffered a work-related injury to his right knee. Claimant was then referred by the petitioner's medical department to a Dr. Simon, who first saw the claimant on July 24, 1974. On August 8, 1974, Dr. Simon operated upon claimant and removed a torn medial and a torn lateral meniscus (cartilage) from his right knee. Claimant then began receiving compensation for total disability effective August 14, 1974. Compensation was eventually terminated on September 27, 1974, upon the execution of a final settlement agreement. A supplemental agreement was entered into on August 8, 1975, providing that claimant had begun to lose work due to the knee injury on August 1, 1975. A second supplemental agreement was entered into on September 18, 1975. It stated that claimant had begun to lose work due to the original injury as of September 2, 1975. Petitioner then filed a termination petition on April 5, 1976, alleging that claimant's disability had ceased as of January 14, 1976.

Dr. Simon, who has treated claimant throughout the course of his injury, was the only witness called to testify at the hearing before the referee. Dr. Simon testified that the injury to claimant's right knee constituted a partial disability to the whole man rated as somewhere between 0% and 20%, but that he could not specify the exact percentage of disability. Dr. Simon further testified that this residual disability to claimant's knee, in combination with non-related degenerative changes in claimant's other joints, prevented him from returning to his job as a truck driver. Finally, Dr. Simon testified that absent claimant's non-related degenerative conditions he could have returned

[ 38 Pa. Commw. Page 143]

    to work as a truck driver on January 14, 1976. The referee, in his finding of fact number nine, specifically rejected this latter portion of Dr. Simon's testimony.

The Board, which affirmed the referee's denial of the termination petition, reasoned that the petitioner had demonstrated a reduction in disability, but did not present any evidence regarding work available to the claimant in light of his partial disability. ...


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