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4156 BAR CORPORATION AND WESTMORELAND CASUALTY COMPANY v. COMMONWEALTH PENNSYLVANIA (12/14/81)

decided: December 14, 1981.

4156 BAR CORPORATION AND WESTMORELAND CASUALTY COMPANY, PETITIONERS
v.
COMMONWEALTH OF PENNSYLVANIA, WORKMEN'S COMPENSATION APPEAL BOARD AND BERNARD KIMMELMAN, RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in the case of Bernard Kimmelman v. 4156 Bar Corporation, No. A-73990.

COUNSEL

Earl T. Britt, with him Boyd M. McGranaghan, Duane, Morris & Heckscher, for petitioners.

William T. Adis, Pechner, Dorfman, Wolffe, Rounick & Cabot, for respondent, Bernard Kimmelman.

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

Author: Williams, Jr.

[ 63 Pa. Commw. Page 178]

Appellants, 4156 Bar Corporation and Westmoreland Casualty Company, appeal from an order of the Workmen's Compensation Appeal Board (Board) affirming a referee's decision which awarded claimant total disability benefits for a work-related injury.*fn1

Claimant, Bernard Kimmelman, worked as a bartender and manager at 4156 Bar Corporation. Claimant's duties as a bartender included serving drinks, loading the refrigerator with beer, ordering beer and liquor, lifting and carrying cases of beer and whiskey, making sandwiches, cleaning the kitchen, mopping the floors, and washing glasses. On March 1, 1976, during the course of his employment, claimant injured his back while lifting a case of beer. Claimant's injury was diagnosed as an acute disc problem, as a result of which he underwent an operation for the removal of a disc and the insertion of a bone graft in the disc spaces. Thereafter, claimant spent several months healing from his surgical procedure. However, notwithstanding his recuperation, claimant was left unable to perform any activity requiring physical exertion, including those involving repetitive bending or lifting, and/or sitting or driving for periods of time exceeding one hour.

Claimant removed himself from the payroll of the bar, but beginning in July, 1976, he made brief visits to the bar for purposes of collecting the daily receipts and checking on its operation.

Subsequent to claimant's injury, he applied for workmen's compensation benefits, alleging that he was permanently and totally disabled due to his back

[ 63 Pa. Commw. Page 179]

    ailment. Several referee's hearings were held and in September, 1977, the referee issued a decision awarding benefits to the claimant and finding him to be totally disabled at that time and into the indeterminate future. Claimant's employer appealed from that decision and in March, 1978, the Board set aside the referee's determination and remanded the case to the referee for clarification of his findings of fact and conclusions of law.

In July, 1978, the referee rendered a second determination, again awarding compensation to the claimant for total disability resulting from the March 1, 1976 incident. The referee found that the claimant had established by competent evidence that his work-related injury caused him to be totally disabled. Additionally, the referee found that claimant's employer failed to establish that claimant had recovered fully or partially from his injury. Furthermore, the referee held that claimant's employer did not carry its burden of proving that work existed which claimant was capable of performing.

Once again, claimant's employer filed an appeal from the referee's decision. In September 1980, the Board affirmed the referee's decision and dismissed the ...


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