Appeal from the Order of the Workmen's Compensation Appeal Board in the case of Claim of Fiore DeClerico, Jr. v. Purolator Security, Inc., No. A-78509.
Stephen J. Harlen, Swartz, Campbell & Detweiler, for petitioner.
Carl M. Mazzocone, with him Lawrence Hannaway, and James Kerwick, Kates, Livesey & Mazzocone, P.C., for respondents.
Judges Mencer, Craig and MacPhail, sitting as a panel of three. Opinion by Judge MacPhail.
[ 61 Pa. Commw. Page 487]
Purolator Security, Inc. (Employer) appeals here from an order of the Workmen's Compensation Appeal Board (Board) which affirmed the referee's denial of Employer's petition to terminate the benefits of its former employee Fiore DeClerico, Jr. (Claimant).
On February 2, 1976, Claimant, employed as a truck driver, suffered neck and back injuries as a result of an on-the-job accident. By a notice of compensation payable, Claimant initially received total disability benefits. Claimant returned to his former job for a short time in 1976, but his back problems prevented him from continuing work with Employer. For approximately four months during 1977, Claimant was employed as a shipper in a tailor's shop; however, his recurring back problems caused him to leave that job. Claimant resumed receiving total disability benefits until May 11, 1978, when Employer filed a petition to terminate his benefits together with a physician's affidavit alleging that Claimant had fully recovered from his injury, as of April 24, 1978.
The referee entered a decision on January 4, 1980, finding that as of April 24, 1978, Claimant was totally
[ 61 Pa. Commw. Page 488]
disabled and that at the date of the referee's decision he was still totally disabled. The referee concluded, therefore, that the termination petition should be dismissed. Without taking additional testimony, the Board affirmed the referee's decision.
The Employer, in its petition for review of the Board's order, raises the sole issue of whether or not the referee and Board capriciously disregarded competent evidence of the availability of work for the Claimant within the restrictions placed on him by Claimant's testifying physician, when it found that Claimant remained totally disabled.
When the employer is the moving party (as with a petition to terminate or modify benefits), he has the burden of showing either that (1) disability has ended or that (2) it has been reduced and that work is available to the claimant and the claimant is capable of doing such work. Fashion Prints v. Workmen's Compensation Appeal Board, 57 Pa. Commonwealth Ct. 250, 425 A.2d 1221 (1981).
Since Employer as the moving party here failed to sustain its burden of proof before the Board, our scope of review of the Board's decision is limited to ascertaining whether or not constitutional rights were violated, an error of law was committed, or there has been a capricious disregard of competent evidence. Harrigan v. Workmen's Compensation Appeal Board, 40 Pa. Commonwealth Ct. 390, 397 A.2d 490 (1979). Our review does enable us to address the issue raised by Employer on appeal.
To support its burden of proof, Employer first offered into evidence at the hearing held September 18, 1978, a deposition of Dr. Simon, an orthopedic surgeon. Dr. Simon had last examined Claimant on April 24, 1978, and at that time found him fully recovered and fully capable of returning to work involving light duties.
[ 61 Pa. Commw. Page 489]
Claimant testified at that first hearing that he continued under the care of Dr. Gorham, a general surgeon, who prescribed muscle relaxors and pain pills for his back problem. He stated that he ...