Appeal from the Order of the Workmen's Compensation Appeal Board in case of Louis J. Cugini v. Arlen Realty, No. A-80561.
John F. McElvenny, for petitioner.
Charles S. Katz, Jr., Swartz, Campbell & Detweiler, for respondent, Arlen Realty.
Judges Rogers, Craig and MacPhail, sitting as a panel of three. Opinion by Judge MacPhail.
[ 74 Pa. Commw. Page 471]
Claimant (Louis J. Cugini) appeals here from an order of the Workmen's Compensation Appeal Board (Board) which affirmed the decision of a referee holding that the Employer (Arlen Realty) failed to meet its burden of proving*fn1 that Claimant's disability had terminated as of April 25, 1977, but that as of May 9, 1977, Claimant was partially disabled and able to return to light work. The referee further found that on May 9, 1977, work was available near Claimant's home in Baltimore, Maryland, at an average weekly wage equal to or in excess of his pre-injury average weekly wage, which work was within Claimant's vocational and educational qualifications and which was within his physical limitations.
The referee ordered that additional compensation for total disability should be awarded to Claimant from April 25, 1977 through May 8, 1977 and granted suspension of benefits as of May 9, 1977.
Claimant sustained a work related injury on October 29, 1976, while working for the Employer as a construction engineer. He was paid total disability benefits from October 30, 1976 through April 24, 1977, for a fractured left wrist and fractured vertebrae. On May 2, 1977, Employer filed a Petition for Termination, based on an affidavit of Recovery by William H. Simon, M.D., alleging that all compensable disability terminated on or before April 25, 1977. After considering the testimony of Manford Abrahamson, M.D., Claimant's treating physician, and the testimony of the
[ 74 Pa. Commw. Page 472]
Employer's physician, Dr. Simon, the referee*fn2 found Dr. Abrahamson's testimony to be most credible.*fn3 Based on Dr. Abrahamson's testimony the referee found that:
Claimant was not able to return to work as of April 25, 1977, but was able to return to light work as of May 9, 1977. Said light work was to include no lifting over 25 lbs., no repetitive stooping or squatting and no repetitive bending. Claimant was to utilize back brace [sic] to prevent him from leaning too far forward. Claimant had residuals of the fracture of his wrist and was suffering a soft tissue lumbosacral strain; however, the fracture of his vertebrae at the T11 level was healed firmly and was not producing disabling symptomatology.
In his appeal, the Claimant contends that the above quoted finding of fact is not supported by substantial evidence.*fn4 With ...