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HELEN HERMAN v. COMMONWEALTH PENNSYLVANIA (12/28/81)

decided: December 28, 1981.

HELEN HERMAN, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, WORKMEN'S COMPENSATION APPEAL BOARD AND FAYETTE COUNTY, RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in the case of Helen Herman v. Fayette County, No. A-79113.

COUNSEL

Anthony J. Seneca, Seneca & O'Dell, P.C., for petitioner.

Scott E. Becker, Thomson, Rhodes & Grigsby, for respondent, Fayette County.

Judges Mencer, MacPhail and Palladino, sitting as a panel of three. Opinion by Judge Palladino. Dissenting Opinion by Judge MacPhail.

Author: Palladino

[ 63 Pa. Commw. Page 425]

This is an appeal by Helen Herman (claimant) from an order of the Workmen's Compensation Appeal Board (Board) affirming a referee's decision which granted a termination petition filed by claimant's former employer, Fayette County. We affirm.

The facts in this case are not in dispute. On January 13, 1975, claimant was injured in a work-related accident when a docket book she was reaching for slipped off a shelf and struck her feet. This injury eventually proved to be totally disabling, and the county, pursuant to a Notice of Compensation Payable, subsequently paid claimant disability benefits from January 14, 1975, until June 15, 1978.

On June 15, 1978, claimant was examined by Dr. Dominic A. Donio, a county physician, who concluded, based on the results of this examination, that claimant had fully recovered from her injury. In response to this diagnosis, the county immediately suspended the payment of benefits to claimant, and shortly thereafter filed a termination petition with the Department of Labor and Industry alleging therein that claimant's disability had ceased as of June 15, 1978. A referee subsequently conducted two hearings on this termination petition on April 2, 1979, and December 20, 1979. At the later hearing, the county introduced into evidence a deposition of Dr. Donio who testified therein that claimant's disability had ceased. Claimant, for her part, offered into evidence a deposition of Dr. Rudolf E. Medlen who testified therein that claimant was suffering, inter alia, from phlebitis and tendonitis

[ 63 Pa. Commw. Page 426]

    which he attributed to the blow claimant sustained to her feet on January 13, 1975. After reviewing this evidence, the referee made the following pertinent findings of fact:

3. That after extensive careful study of all the evidence submitted by the parties in this case, your Referee finds as a fact that the Claimant failed to prove by unequivocal medical evidence that her alleged phlebitis, tendonitis, chronic fascitis and/or myositis of both legs is the result of subject incident [the January 13, 1975, accident].

4. Your referee further finds that all disability as a result of the incident of January 13, 1975 ceased and terminated on June 15, 1978 based on the report dated June 16, 1978 and the Deposition transcript of Dr. Dominic A. Donio.

Based on these findings, the referee subsequently concluded that the county's termination ...


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