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ROBERT HAWTHORNE v. WORKMEN'S COMPENSATION APPEAL BOARD (ROBERT O. STONE) (06/08/83)

decided: June 8, 1983.

ROBERT HAWTHORNE, INC. AND CONTINENTAL INSURANCE COMPANY, PETITIONERS
v.
WORKMEN'S COMPENSATION APPEAL BOARD (ROBERT O. STONE), RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in the case of Robert O. Stone v. Robert Hawthorne, Inc., No. A-79152.

COUNSEL

L. Oliver Frey, with him, Susan McLaughlin and David L. Pennington, Harvey, Pennington, Herting & Renneisen, Ltd., for petitioners.

Paul V. Tatlow, with him Thomas F. McDevitt, Thomas F. McDevitt, P.C., for respondent, Robert O. Stone.

Judges Rogers, Blatt and Craig, sitting as a panel of three. Opinion by Judge Craig.

Author: Craig

[ 74 Pa. Commw. Page 636]

In this workmen's compensation case, employer Robert Hawthorne, Inc.*fn1 appeals the board's*fn2 affirmance of a referee's dismissal of its petition to terminate, suspend or modify benefits to claimant Robert O. Stone.

In September, 1967, the claimant had suffered severe injuries, including a broken neck, when the tractor-trailer, which he was driving for the employer, overturned. By agreement, the employer has paid the claimant $52.50 a week.

On May 13, 1977, the employer filed the termination petition, alleging that the claimant had recovered from his injuries. At the hearing, the employer attempted to rebut the claimant's testimony that he could not turn his head from side to side, and was incapable of doing housework, by presenting a medical witness, who testified that he had recently examined the claimant, and that the claimant had recovered from his injuries, and was capable of returning to work as a truckdriver. Furthermore, the employer's private investigator testified that he had conducted a surveillance of the claimant's activities on several occasions,

[ 74 Pa. Commw. Page 637]

    and had motion pictures of the claimant doing housework, yardwork and indicating that the claimant was capable of moving his head from side to side. The claimant then admitted that he had engaged in most of the activities depicted on these films, but he insisted that he remains disabled.

The claimant then introduced the testimony of a medical witness who opined that the claimant continues to be permanently and totally disabled, suffering from a fixed dislocation of the spine and a chronic musculo-ligamentous sprain. Another medical witness testified that the claimant continues to be totally disabled as a result of a traumatic neurosis which is directly related to the work-related injury.

The referee, in his findings of fact, expressly accepted the testimony of claimant's medical witnesses without mentioning the motion pictures. On appeal, the employer contends that the referee's failure to incorporate the significance of the film in the findings of fact constitutes a capricious disregard of competent evidence.*fn3

Although motion pictures, when properly identified and authenticated, are admissible as evidence for the purpose of establishing facts, John B. Kelly Co., Inc. v. Workmen's Compensation Appeal Board, 8 Pa. Commonwealth Ct. 589, 303 A.2d 255 ...


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