Appeal from the Order of the Workmen's Compensation Appeal Board in the case of Themis Roussos v. St. Vincent Health Center, No. A-77559.
Howard N. Plate, Plate, Shapira, Hutzelman, Berlin & May, for petitioners.
Harry K. Thomas, Knox, Graham, McLaughlin, Gornall and Sennett, Inc., for respondents.
Judges Blatt, MacPhail and Williams, Jr., sitting as a panel of three. Opinion by Judge Williams, Jr. Judge Wilkinson, Jr. did not participate in the decision in this case.
[ 59 Pa. Commw. Page 131]
St. Vincent Health Center (employer) and its insurance carrier, Pennsylvania Manufacturers' Association Insurance Company (PMA), appeal from an Order of the Workmen's Compensation Appeal Board (Board) which reversed a referee's decision to modify the benefits payable to Themis Roussos (claimant). The referee's decision had been entered on a petition by the employer and PMA to suspend claimant's benefits.
The claimant injured his back in the course of his employment at St. Vincent Health Center on April 15, 1976. He suffered a lumbosacral strain or sprain, which resulted in payment of compensation to him for total disability pursuant to a Notice of Compensation
[ 59 Pa. Commw. Page 132]
Payable. Payment of compensation continued until the claimant executed a final receipt which stated that he was able to return to work on May 3, 1976. Shortly thereafter the parties entered into a supplemental agreement indicating that the claimant's disability had recurred. On June 14, 1976, the claimant again tried to resume working, and signed a second final receipt effective that date. However, on September 13, 1976, he abandoned his efforts to continue working, and filed a petition to set aside the second final receipt. That petition was granted on October 27, 1977; and total disability compensation was thereby reinstated, effective September 13, 1976.
On December 19, 1977, the employer and PMA filed a petition for suspension of compensation. They alleged in their petition that the claimant's disability had ceased as of December 27, 1976; and that the claimant had been able to work since that date.
The referee below treated the suspension petition as a petition to modify compensation. After a hearing on the petition, in June, 1978, the referee determined that the claimant's disability had changed from total to partial, and that as of March 28, 1978, there was work available which the claimant could perform. Consequently, the referee reduced the claimant's rate of compensation to that for partial disability, effective March 28, 1978.
The claimant appealed the referee's decision to the Board, which reversed on the ground that the referee's decision regarding the level of claimant's disability was based on irrelevant medical testimony. Accordingly, the Board concluded that the employer and PMA had not met their burden of proving a reduction in the claimant's disability, and ordered that ...