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FASHION PRINTS v. COMMONWEALTH PENNSYLVANIA (03/03/81)

decided: March 3, 1981.

FASHION PRINTS, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, WORKMEN'S COMPENSATION APPEAL BOARD AND JAMES RADLER, RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in case of James Radler v. Fashion Prints, No. A-76213.

COUNSEL

John R. Lenahan, Jr., with him John C. Mascelli, Lenahan, Dempsey & Piazza, for petitioner.

Richard D. Director, with him Martin H. Philip, for respondent, James Radler.

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

Author: Mencer

[ 57 Pa. Commw. Page 251]

Fashion Prints (employer) has appealed from an order of the Workmen's Compensation Appeal Board (Board) reversing a decision of the referee which terminated the payment of total disability benefits to James Radler (respondent). We reverse the Board.

[ 57 Pa. Commw. Page 252]

The respondent was employed as a silk-screen printer in a textile factory. He was awarded total disability benefits as the result of an injury sustained in a fall at work on September 9, 1976. On March 21, 1977, the employer filed a termination petition which alleged that the respondent had fully recovered from his injury and was no longer disabled. The respondent and the employer each produced one medical expert to testify on the question of disability. The employer's expert, Dr. White, testified that the respondent had fully recovered from his injury and could return to work at his regular job. The respondent's expert, Dr. Sussman, testified that the respondent had not fully recovered from his injury and was incapable of returning to his regular job because of the heavy lifting it required. The referee believed Dr. White.

In addition to examining the respondent, Dr. White had personally visited the place of employment to learn about the physical requirements of the respondent's job. The respondent objected to Dr. White's medical conclusions and opinions, asserting that they were based upon hearsay. The referee overruled the objection and ordered the termination of benefits.

The Board ruled that the referee should have sustained the hearsay objection. It therefore reversed, without taking additional testimony, concluding that the hearsay problem rendered all of Dr. White's testimony incompetent, so that the record was devoid of competent evidence that disability had ceased, and that the employer had not satisfied its burden of proof because it did not present evidence that suitable work was available. This appeal followed.

The testimony of Dr. White contained two distinct elements. First, he testified that he had examined the respondent and found no trace of injury to his back. From this he determined that the respondent had fully

[ 57 Pa. Commw. Page 253]

    recovered from his injury and was no longer disabled. Second, Dr. White testified that he had visited the place of employment and observed employees perform the duties of the respondent's job and concluded that the respondent would have no difficulty in performing the same tasks. The Board found that this knowledge of the respondent's job duties, having been gained by out-of-court observation, was based upon hearsay which irreparably tainted Dr. White's testimony. We are not convinced that the Board was correct, but we need not rule on the issue. Even if the referee should have excluded that portion of Dr. White's testimony which dealt with the requirements of the respondent's job, the remainder of Dr. White's testimony, if credible, adequately supported the conclusion that the respondent was no longer disabled. See Romanski v. Workmen's ...


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