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W & G SPECIALTIES CO. v. COMMONWEALTH PENNSYLVANIA (11/30/79)

decided: November 30, 1979.

W & G SPECIALTIES CO., PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, WORKMEN'S COMPENSATION APPEAL BOARD AND AL BURNETTE, RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in case of Al Burnette v. W & G Specialties Company, No. A-75386.

COUNSEL

Thomas R. Bond, with him Kenneth F. DeMarco, and LaBraum and Doak, for petitioner.

Jeffrey M. Azpell, for respondents.

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

Author: Disalle

[ 47 Pa. Commw. Page 488]

W & G Specialties Company (Employer) asks us to review an order of the Workmen's Compensation Appeal Board (Board) affirming a referee's award of total disability benefits to Al Burnette (Claimant). We affirm.

On November 24, 1976, Claimant, while working for Employer, suffered a back injury when he attempted to lift a heavy object. His treating physician, Dr. Stanley Dorman, diagnosed him as suffering from a herniated disc in his lower back and concluded that he was totally disabled as a result of the incident at work. Claimant has not worked since December 3, 1976.

The referee concluded that his acceptance of Dr. Dorman's testimony of total disability rendered "irrelevant" the testimony of Dr. Philip Spergel, a vocational rehabilitation expert, that Claimant could perform certain sedentary jobs. Employer argues that both Claimant and Dr. Dorman testified that Claimant could perform sedentary work and thus the referee erred in discounting Dr. Spergel's testimony. We disagree.

Turning first to Claimant's testimony, we note that he worked for Globe Security Systems as a security guard at the same time that he worked for Employer. On cross-examination, the following colloquy occurred concerning that job:

Q. If you wanted to, could you go back to work for Globe?

A. Yes, nothing to it, just sitting down.

Q. Have you asked Globe to come back to work?

A. Yes, I could get back.

Q. No, I say have you asked Globe if you could come ...


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