Appeal from the Order of the Workmen's Compensation Appeal Board in the case of Richard M. Grabish v. Trueform Foundations, Inc., No. A-79703.
Richard T. Williams, Sr., for petitioner.
Edward G. Kuyat, Jr., for respondents, Trueform Foundations, Inc. and PMA Insurance Company.
President Judge Crumlish, Jr. and Judges MacPhail and Doyle, sitting as a panel of three. Opinion by Judge MacPhail. Judge Doyle dissents.
[ 70 Pa. Commw. Page 543]
Claimant*fn1 appeals here from an order of the Workmen's Compensation Appeal Board (Board) affirming a referee's decision which granted Employer's*fn2 Petition for Termination and held that all disability resulting from Claimant's injury ceased as of July 24, 1978.
Claimant was accidentally injured on October 26, 1977, while performing services for his Employer. He sustained a fracture to the navicular bone of the left wrist which caused him to be totally disabled. Compensation was paid to Claimant at the weekly disability
[ 70 Pa. Commw. Page 544]
rate of $69.89 from November 3, 1977 to July 23, 1978 inclusive, totaling $2,626.05. On August 8, 1978, Employer filed a termination petition based on Dr. Patrick B. Respet's*fn3 signed Physician's Affidavit of Recovery stating that Claimant had fully recovered from his injury and was able to resume his previous occupation without limitation. Claimant filed an Answer to this Petition for Termination alleging that he still remained disabled as a result of the injury he sustained on October 26, 1977, and that Dr. William C. Go, Claimant's physician, supported this assertion and stated that Claimant needed surgery, either bone graft surgery to unite the bone, or excision of the bone fragment which is causing the problem.
In its decision, the Board held that the referee did not commit any errors of law and that Dr. Respet's affidavit fully substantiates the referee's findings of fact that Claimant fully recovered from the injury. On that basis the Board stated that the Employer met its burden of proving the disability had ceased and therefore that termination of benefits was proper.
[ 70 Pa. Commw. Page 545]
In a proceeding for termination the Employer has the burden of proving that the Claimant's disability has ceased or has been reduced and that work is available to the Claimant which the Claimant is capable of doing. Republic Steel Corp. v. Workmen's Compensation Appeal Board, 54 Pa. Commonwealth Ct. 509, 512, 422 A.2d 228, 229 (1980). Since the Employer prevailed below, our review is limited to determining whether constitutional rights were violated, whether an error of law was committed or whether the necessary findings of fact were supported by substantial evidence. Workmen's Compensation Appeal Board v. Page 545} Kelly Steel Erectors, Inc., 25 Pa. Commonwealth Ct. 329, 361 A.2d 478 (1976). Before this Court Claimant's only challenge concerns the finding that his disability has ceased. He alleges this finding is not supported by substantial evidence.
Dr. Respet testified that he "could see evidence of a fracture through the bone" but that he interpreted it as being healed. He further testified concerning his ...