Appeal from the Order of the Workmen's Compensation Appeal Board in the case of Jack P. Wiley v. Certainteed Corporation, No. A-76953.
David L. White, for petitioner.
Joseph Lurie, with him Ala Hamilton Day, Galfand, Berger, Senesky, Lurie and March, for respondents.
Judges Wilkinson, Jr., Williams, Jr. and Palladino, sitting as a panel of three. Opinion by Judge Williams, Jr.
[ 57 Pa. Commw. Page 647]
Certainteed Corporation (appellant) seeks reversal of an Order of the Workmen's Compensation Appeal Board (Board) which suspended the benefits of Jack P. Wiley (claimant) and directed the appellant to pay Wiley's attorney fees. The appellant contends that the referee below committed error by suspending, instead of terminating, Wiley's benefits.
Wiley was employed by the appellant in the capacity of "clean-up relief." He was injured on the job when he was pinned against a wall by a fork lift on April 10, 1978. As a result of this incident he was
[ 57 Pa. Commw. Page 648]
treated by Rocco J. De Masi, M.D., for multiple contusions of the left thorax, left lung, and several leg muscle strains. Although advised by Dr. De Masi to refrain from working, Wiley returned to work the following day; and for the next three weeks he received full wages from the appellant in return for working one hour a day. Thereafter, he ceased working and received compensation from May 1, 1978, to May 16, 1978.
On May 17, 1978, he returned to work after being instructed by Dr. De Masi to "return to full employment." From May 17, 1978, until August 18, 1978, he worked a full eight hour day plus four hours overtime, daily; he averaged sixty hours a week.
On July 20, 1978, Certainteed filed a "Petition for Termination, Suspension, or Modification of Compensation." A hearing was held before a referee, who suspended the claimant's benefits; the referee denied termination of claimant's benefits on the basis that the claimant still suffered from a disability of an "undetermined nature." The referee also found that the appellant had instituted an "unreasonable contest," and thus ordered the appellant to pay the claimant's litigation costs. The appellant appealed the referee's decision to the Board. The Board affirmed the referee, and the appellant brings this appeal from the Board's Order.
[ 57 Pa. Commw. Page 649]
Appellant first contends that the referee's decision that claimant's disability had not ceased was not supported by substantial evidence. We find this contention to be without merit. The appellant filed a "Petition to Terminate, Suspend or Modify Compensation." To prevail on Termination, appellant has the burden of proving conclusively that the claimant's disability has terminated. Walther v. Workmen's Compensation Appeal Board, 37 Pa. Commonwealth Ct. 122, 388 A.2d 1166 (1978); Peoples Gas Heating Co. v. Workmen's Page 649} Compensation Appeal Board, 33 Pa. Commonwealth Ct. 530, 382 A.2d 484 (1978). In attempting to meet this burden, appellant presented documentary evidence that the claimant was instructed to return to full employment by his physician on May 17, 1978; and that the claimant did so, working an average of four hours overtime daily. The claimant admitted these facts, ...