Appeal from the Order of the Workmen's Compensation Appeal Board in case of Zelma T. Gilroy v. Holy Spirit Hospital and Commonwealth of Pennsylvania, No. A-72969.
William F. Martson, with him Mark E. Garber, Jr., and Garber, Fowler & Addams, for petitioner.
Lawrence W. Dague, with him Larry A. Makel, Assistant Attorney General, for respondents.
Judges Wilkinson, Jr., Rogers and Craig, sitting as a panel of three. Opinion by Judge Wilkinson, Jr.
[ 46 Pa. Commw. Page 373]
In this appeal, petitioner challenges an order of the Workmen's Compensation Appeal Board (Board) imposing a penalty of 10 percent on all compensation due for alleged violations of The Pennsylvania Workmen's Compensation Act (Act), Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 1 et seq., as authorized by Section 413(b) of the Act, 77 P.S. § 774.1.*fn1 We modify and affirm.
[ 46 Pa. Commw. Page 374]
The facts for purposes of this appeal are not in dispute. Zelma T. Gilroy, claimant, sustained a work-related injury on August 30, 1973. Pursuant to a notice of compensation payable, claimant received workmen's compensation benefits until June 27, 1974, at which time a petition for modification was filed and payment of benefits unilaterally suspended. A hearing was held before the referee on November 27, 1974 at which the doctor testified. In an opinion dated February 27, 1976, Referee Cassidy ordered benefits suspended as of June 21, 1974.*fn2 On appeal to the Board, the order suspending compensation was vacated and the case remanded for further proceedings by order of the Board dated September 2, 1976.
On October 4, 1976, the Department of Labor and Industry sent a Notice of Hearing to the parties for purposes of determining whether the unilateral suspension of compensation involved any violation of the Act. The Board reversed Referee Noonan's determination on this issue concluding that the suspension violated Section 413 of the Act, 77 P.S. § 774.*fn3
[ 46 Pa. Commw. Page 375]
The modification petition contained no allegation that claimant had returned to work of any sort; the dispute here centers on the validity of physician's "affidavit" which accompanied the petition.
The affidavit is substantively defective because it fails to support the necessary allegation that claimant had fully recovered. Although the doctor opined that claimant was able to resume without limitation her former occupation, the following observation also appears in the doctor's statement: "Mrs. Gilroy is still experiencing incapacitating headaches at least a few days a week." ...