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PAUL GEORGE v. COMMONWEALTH PENNSYLVANIA (12/05/78)

decided: December 5, 1978.

PAUL GEORGE, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, WORKMEN'S COMPENSATION APPEAL BOARD, COMFORT WHOLESALE HEATING & SUPPLY CO. AND TRANS-AMERICA INSURANCE GROUP, RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in case of Paul George v. Comfort Wholesale Heating & Supply Co., No. A-72862.

COUNSEL

Nathan I. Raiken, for petitioner.

Martin J. Fallon, Jr., with him Swartz, Campbell & Detweiler, and James N. Diefenderfer, for respondents.

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

Author: Crumlish

[ 39 Pa. Commw. Page 17]

Paul George (Claimant) appeals a decision of the Workmen's Compensation Appeal Board (Board) which reversed the referee's award of benefits to Claimant pursuant to Section 301(a) of The Pennsylvania Workmen's Compensation Act (Act), Act of June 2, 1915, P.L. 736, as amended, 77 P.S. ยง 431.

We reverse.

Claimant was employed as an oil burner repairman/serviceman by the Comfort Wholesale Heating and Supply Company (Employer). On February 13, 1974, while in the course of his employment, he sustained injuries to his right hand, left shoulder, pelvis and lower back. A compensation agreement was executed on March 4, 1974, whereby Employer agreed to pay him total disability benefits. Following Claimant's back injury, a laminectomy operation to remove a protruded lumbar disc was performed on July 10, 1974.

[ 39 Pa. Commw. Page 18]

On July 3, 1975, Employer filed a petition for suspension of benefits alleging that Claimant could resume employment as of April 16, 1975. The referee denied the petition and found that Employer failed to sustain its burden of proving Claimant's capacity to work; that Claimant suffered from residuals of his injury causing numbness in his left leg, slight but constant pain in his back, and the frequent sensation of impending bowel movement; that Employer failed to sustain its burden of proving availability of jobs for Claimant; and that Claimant remained totally disabled as of April 16, 1975.

On appeal, the Board, without taking additional evidence, reversed the referee, finding that he disregarded competent evidence and made conclusions of law which were not sustained by the record.*fn1

Claimant now comes to us and argues that since the Board took no additional evidence, and the referee is the ultimate finder of fact and the final arbiter of questions of credibility, and since there is substantial evidence to support the ...


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