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ROADWAY EXPRESS v. COMMONWEALTH PENNSYLVANIA (10/06/80)

decided: October 6, 1980.

ROADWAY EXPRESS, INC., PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, WORKMEN'S COMPENSATION APPEAL BOARD AND JOHN B. SUVEG, RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in case of John B. Suveg v. Roadway Express, Inc., No. A-76164.

COUNSEL

Michael I. Levin, of Cleckner and Fearen, for petitioner.

Thomas J. Sharkey, for respondent, John B. Suveg.

President Judge Crumlish and Judges MacPhail and Williams, Jr., sitting as a panel of three. Opinion by Judge MacPhail.

Author: Macphail

[ 54 Pa. Commw. Page 171]

Roadway Express, Inc. (Employer) appeals to this Court from an order of the Workmen's Compensation Appeal Board (Board) affirming a referee's denial of a petition to terminate the benefits of John B. Suveg (Claimant). For the reasons which follow, we affirm.

Claimant suffered an injury in the course of his employment with Employer as a line haul driver when, on January 24, 1976, his tractor trailer hit a drainage hole causing Claimant to strike his head on the ceiling of the truck's cab. Claimant continued to work until July 1, 1976 at which time he claimed total disability as a result of his injury. Pursuant to a referee's order dated October 21, 1976, which was based upon an agreement between the Claimant and Employer, the Employer paid compensation to the Claimant for total disability retroactive to July 2, 1976. A supplemental agreement was entered into by the parties on October 22, 1976 which stated that the status of the Claimant's disability had changed from total to partial disability.*fn1

Employer filed a petition to terminate compensation on November 7, 1977 accompanied by an affidavit by a physician certifying that Claimant could return to work without limitation. Employer ceased the payment of compensation as of November 7, 1977.*fn2

After three hearings the referee denied Employer's petition to terminate, finding that Claimant suffered from a partial disability and was entitled to a reduced rate of compensation based on a demonstrated ability

[ 54 Pa. Commw. Page 172]

    to earn wages.*fn3 The referee also awarded Claimant counsel fees and costs. On Employer's appeal to the Board the determination of the referee was affirmed as to the award of compensation and reversed with respect to the award of counsel fees.*fn4

Employer argues in its petition for review before this Court that (1) the referee did not make a necessary finding of fact, to wit, whether or not the Claimant was able to resume his pre-injury occupation, (2) there was a capricious disregard of the evidence by the referee, and (3) the referee should have disqualified himself for bias and prejudice against Employer's expert medical witness.

It must be noted preliminarily that when the decision below is adverse to the party with the burden of proof, here the Employer, our review is limited to a determination of whether the findings of fact are consistent with each other and with the conclusions of law and can be sustained without a capricious disregard of competent evidence. A-1 Motors, ...


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