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REPUBLIC STEEL CORPORATION v. COMMONWEALTH PENNSYLVANIA (11/13/80)

decided: November 13, 1980.

REPUBLIC STEEL CORPORATION, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, WORKMEN'S COMPENSATION APPEAL BOARD AND BRADEN WILSON, RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in case of Braden W. Wilson v. Republic Steel Corporation, No. A-76498.

COUNSEL

Ralph A. Davies, with him Scott E. Becker, Thomson, Rhodes & Grigsby, for petitioner.

Benjamin L. Costello, with him Margaret D. Blough, and Kenneth J. Yablonski, for respondent, Braden W. Wilson.

Judges Mencer, Rogers and Williams, Jr., sitting as a panel of three. Opinion by Judge Williams, Jr.

Author: Williams

[ 54 Pa. Commw. Page 510]

This is an appeal by Republic Steel Corporation (Republic) from an order of the Workmen's Compensation

[ 54 Pa. Commw. Page 511]

Appeal Board (Board) affirming the referee's dismissal of Republic's termination petition. In this appeal Republic asserts that the referee's decision was based on a capricious disregard of competent evidence.

On November 16, 1976, Republic filed a Petition to Terminate its compensation agreement with respondent Braden Wilson made in consequence of Wilson's 1968 work related injury in one of the appellant's coal mines.*fn1 The petition alleged that Wilson had sufficiently recovered from the injury to "return to work with certain limitations." The petition also alleged that there was work available to Wilson within his physical capabilities.

After hearings on the termination petition, the referee found that claimant Wilson remained totally and permanently disabled from the 1968 work injury and that he was unable to do any work over a long period of time. Based on those findings the referee dismissed Republic's petition; and the Board affirmed that decision.

Republic's assertion of capricious disregard of evidence focuses on part of the testimony of Wilson's own medical witness, Dr. Joseph Novak. Dr. Novak testified, by deposition, that the claimant remained totally and permanently disabled from performing his former occupation of coal miner or any heavy, physical or manual type of labor connected with working in a coal mine.

However, on cross-examination Dr. Novak stated that Wilson could operate a hand lever that controlled a conveyer belt. Based on that testimony and the testimony of a Republic supervisor that such work positions existed with the employer, Republic ...


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