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FRANK CABELL v. COMMONWEALTH PENNSYLVANIA (10/17/78)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: October 17, 1978.

FRANK CABELL, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, WORKMEN'S COMPENSATION APPEAL BOARD AND BELTRAMI ENTERPRISES, INC., RESPONDENTS

Appeal from the Order of the Workmen's Compensation Appeal Board in case of Frank Cabell v. Beltrami Enterprises, Inc., No. A-72178.

COUNSEL

Thomas J. Carlyon, with him Falvello, Ustynoski, Giuliani & Bernstein, for petitioner.

John R. Lenahan, Jr., with him Lenahan, Dempsey, Murphy & Piazza, and James N. Diefenderfer, for respondents.

Judges Mencer, DiSalle and MacPhail, sitting as a panel of three.

Author: Per Curiam

[ 38 Pa. Commw. Page 134]

Frank Cabell (Claimant) was injured in the course of his employment with respondent, Beltrami Enterprises, Inc., (Beltrami) on February 22, 1974. Claimant

[ 38 Pa. Commw. Page 135]

    complained only of an injury to his right leg, and the reports of his attending physician dated March 12, 1974, dealt exclusively with that injury.

A Notice of Compensation Payable was executed on March 19, 1974, and Claimant received benefits from February 23, 1974, to November 3, 1974. Then, on November 19, 1974, Beltrami filed a Petition to Terminate, alleging that Claimant had fully recovered and could return to his former employment. The evidence consisted of testimony by Dr. Wesley G. Stish, on behalf of Beltrami, and Dr. Gary L. Wolfgang, on behalf of Claimant. Dr. Stish examined Claimant on November 1, 1974, and found him to be fully recovered. At that time, Claimant made no mention of any back pains, and Dr. Stish confined his examination to Claimant's right leg. Claimant then went to Dr. Wolfgang, complaining that his back hurt. Dr. Wolfgang examined him and testified that he suffered from low back strain and could not return to work.

On August 30, 1976, the referee filed his opinion, concluding that Claimant had fully recovered. The Workmen's Compensation Appeal Board affirmed, and Claimant appealed.

The issues presented on appeal are whether the record contains sufficient evidence to sustain Beltrami's burden of establishing a right to terminate benefits and whether the referee improperly considered hearsay evidence. Based on our careful review of the record, we find no merit in any of Claimant's arguments.

Accordingly, we affirm.

Per Curiam Order

And Now, this 17th day of October, 1978, the decision of the Workmen's Compensation Appeal Board, dated July 21, 1977, granting Beltrami's Petition to Terminate, is affirmed.

Disposition

Affirmed.

19781017

© 1998 VersusLaw Inc.



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