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SHENANGO v. WORKMEN'S COMPENSATION APPEAL BOARD (SALVATORE DEL BROCCO) (07/19/82)

decided: July 19, 1982.

SHENANGO, INC., PETITIONER
v.
WORKMEN'S COMPENSATION APPEAL BOARD (SALVATORE DEL BROCCO), RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in the case of Salvatore Del Brocco (Diangelo) v. Shenango, Inc., No. A-80172.

COUNSEL

Joyce McKeever, with her John W. Read, Kirkpatrick, Lockhart, Johnson & Hutchison, for petitioner.

James R. Schmitt, with him John F. Will, Jr., and Ronald Ganassi, Will & Keisling, for respondents.

Judges Blatt, Williams, Jr. and MacPhail, sitting as a panel of three. Opinion by Judge MacPhail.

Author: Macphail

[ 67 Pa. Commw. Page 501]

Shenango, Inc. (Petitioner) appeals from an order of the Workmen's Compensation Appeal Board (Board) which affirmed a referee's order reinstating workmen's compensation benefits to Salvatore Del Brocco (Claimant) and dismissing Petitioner's termination petition. We affirm.

[ 67 Pa. Commw. Page 502]

The referee's findings of fact, which are supported by substantial evidence in the record, reflect that Claimant injured his left shoulder while in the course of his employment as a chipper with Petitioner on May 29, 1978. He thereafter was paid compensation benefits for total disability pursuant to a notice of compensation payable. Claimant subsequently executed a final receipt verifying his return to work on June 26, 1978.

On March 2, 1979, Claimant suffered a recurrence of his disability. A supplemental agreement was entered on March 7, 1979 reinstating compensation benefits for total disability. Petitioner suspended Claimant's compensation payments, however, effective September 12, 1979,*fn1 when he returned to light duty work with Petitioner following an examination by a company physician who certified that, while Claimant's complaints of pain in his left arm had not diminished,

[ 67 Pa. Commw. Page 503]

    he believed Claimant could perform certain light work. Claimant worked a total of seven days, performing janitorial duties, during which time he received medication at the plant dispensary for pain in his left arm. On September 20, 1979 Claimant reported off from work until further notice due to the pain in his arm. On September 24, 1979 Claimant's treating physician directed that Claimant not work for the following two weeks. Following a written warning issued on September 21, 1979 and a five-day suspension effective September 27 for unexcused absences, Claimant was discharged by Petitioner on October 1, 1979.

On October 9, 1979, Claimant filed a petition for reinstatement of his compensation benefits. Petitioner did not file any petitions indicating that its payment obligation under the supplemental agreement of March 7, 1979 had or should be suspended, modified or terminated, until December 3, 1979, when it filed a termination petition. The reinstatement and termination petitions were consolidated and a total of five hearings were conducted thereon between November 16, 1979 and July 28, 1980. In the interim, on or about April 15, 1980, Claimant returned with his family to live in Italy. Following the hearings held in this case, the referee ordered that ...


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