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SYLVESTER NOBLES v. COMMONWEALTH PENNSYLVANIA (02/07/80)

decided: February 7, 1980.

SYLVESTER NOBLES, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, WORKMEN'S COMPENSATION APPEAL BOARD AND LEE TIRE AND RUBBER COMPANY, RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in case of Sylvester Nobles, Claimant v. Lee Tire & Rubber Co., Defendant, No. A-73657.

COUNSEL

Robert Morris Cohen, for appellant.

Martin J. Fellow, Jr., with him R. D. Harburg and Joseph J. Murphy, of counsel, Robert J. Murphy and Thomas W. Murphy, for respondents.

Judges Crumlish, Jr., Mencer and Craig, sitting as a panel of three. Opinion by Judge Craig. Judge DiSalle did not participate in the decision of this case.

Author: Craig

[ 49 Pa. Commw. Page 256]

Petitioner Sylvester Nobles appeals from an affirmance by the Workmen's Compensation Appeal Board (board) of a referee's termination of compensation.

Respondent employer filed a petition to terminate compensation, with a physician's affidavit of recovery attached, seeking termination as of February 16, 1977.

At an April 18, 1977 hearing, at which petitioner failed to appear, his then attorney advised the referee that he had been unable to contact petitioner and desired to withdraw. The employer then presented medical testimony, consistent with the affidavit, to the

[ 49 Pa. Commw. Page 257]

    effect that petitioner was able to return to his occupation February 16, 1977.

The referee scheduled a second hearing for July 5, 1977, to allow petitioner an opportunity to cross-examine the employer's witness and otherwise contest the termination. Petitioner retained new counsel just one week before that date, who filed an answer to the termination petition on June 28.

Neither petitioner nor his new counsel appeared at the 9:30 a.m. time set for the July 5 hearing. At 11:00 a.m., when they had still not appeared, upon motion on behalf of the employer, the referee granted termination of compensation as of February 16, 1977. When petitioner's counsel finally arrived that same afternoon, the referee declined to set aside his grant of termination. The board affirmed, and this appeal followed.

Petitioner contends that the decision is not supported by Section 416 of The Pennsylvania Workmen's Compensation Act, Act of June 2, 1915, P.L. 736, § 416, as amended, 77 P.S. § 821, and also is ...


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