Appeal from the Order of the Workmen's Compensation Appeal Board in case of Braccio Dignani v. Stegmaier Brewing Co., No. A-74791.
William E. Wyatt, Jr., with him Richard G. Fine and Edwin A. Abrahamsen, of Bialkowski, Fine & Bialkowski, for petitioner.
Robert T. Panowicz, with him Anthony J. Lupas, Jr., for respondents.
Judges Blatt, MacPhail and Williams, Jr., sitting as a panel of three. Opinion by Judge Williams, Jr. President Judge Bowman did not participate in the decision in this case.
[ 50 Pa. Commw. Page 242]
This is an appeal by employer Stegmaier Brewing Company from a decision of the Workmen's Compensation Appeal Board, affirming the Referee's dismissal of the employer's petition to terminate the benefits claimant Braccio Dignani had been receiving under The Pennsylvania Workmen's Compensation Act.*fn1
The Referee had found that the claimant remained totally and permanently disabled from performing his former occupation and that there was insufficient proof of other available work within the capabilities of the claimant. Based on these findings, the Referee accordingly concluded that the employer had not met its burden of proving that the disability had terminated. The Board's affirmance of the Referee was without additional evidence.
The claimant, Braccio Dignani, was employed at the Stegmaier Brewing Company in Wilkes-Barre, Pennsylvania, where his duties included working as a clean-up man and lifting and loading beer cases. On
[ 50 Pa. Commw. Page 243]
November 26, 1970, he suffered an injury to his right knee in the course of his employment. Therefore, he began receiving benefits pursuant to an agreement with his employer, made in July 1971. On April 11, 1977 the employer petitioned to terminate the benefits, on the basis of an affidavit of recovery submitted to the employer by a Dr. Cecil Park, a specialist in orthopedic surgery. Dr. Park had examined the claimant on one occasion and concluded that the claimant could resume his former occupation at the Stegmaier Brewery.
At the hearing on the employer's petition, held on January 19, 1978, the claimant put into evidence the deposition of a Dr. Joseph Cesare, a Board certified orthopedic surgeon. Dr. Cesare examined the 61 year old claimant on two occasions. The doctor's examination disclosed that the claimant had undergone three operations to his right knee, and had a steel pin implanted in it, all due to the work injury. Due to complications caused by the condition of the right knee, the claimant had to have yet another operation, to his left knee. According to Dr. Cesare, the claimant suffered from arthritis in both knees, muscle shrinkage in the right knee, restriction of motion in the right knee, and a grating of that knee cap and its underlying bone, all of which were productive of persistent pain. The doctor testified that these conditions were due to the work injury of 1970.
Based on his examination of the claimant, Dr. Cesare was of the opinion that the claimant was totally and permanently disabled from performing his former occupation. The doctor stated that the claimant could not work in any job that required bending, stooping, heavy lifting, climbing, excessive walking, or laborious effort. Further, according to Dr. Cesare, the claimant ...