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JOHN L. GARMAN v. WORKMEN'S COMPENSATION APPEAL BOARD (AMP (07/22/83)

decided: July 22, 1983.

JOHN L. GARMAN, PETITIONER
v.
WORKMEN'S COMPENSATION APPEAL BOARD (AMP, INC. ET AL.), RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in case of John L. Garman v. AMP, Inc., Nos. A-75560 and A-76825.

COUNSEL

Ira H. Weinstock, with him Paul J. Dellasega, Ira H. Wienstock, P.C., for petitioner.

Kenneth F. DeMarco, Post & Schell, P.C., for respondent, AMP, Inc. et al.

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

Author: Rogers

[ 75 Pa. Commw. Page 608]

The claimant in this workmen's compensation case had been receiving benefits under a notice of compensation payable submitted to the workmen's compensation authorities. About four years after the notice of compensation was in effect, the employer filed a petition for termination of benefits accompanied by a doctor's affidavit deposing that the claimant's disability had ceased. Benefits were suspended in accordance with Section 413 of The Pennsylvania Workmen's Compensation Act, Act of June 2, 1915, P.L. 736, as amended, 77 P.S. ยง 774.

After hearing evidence, a referee granted the prayer of the petition to terminate benefits. This order was affirmed by the Workmen's Compensation Appeal Board and the claimant has now petitioned this court to review the Board's order. We affirm.

The claimant principally argues that the referee's finding that his disability has finally ceased is not supported by substantial evidence and that, at the worst for him, the record supports an order only for a modification of the notice of compensation payable to one for partial disability.

The claimant was injured in 1973 while lifting a heavy article. He suffered an acute strain in the lumbosacral and cervical area. He returned to work in 1975 on partial disability until 1976 when he returned to full disability. In December, 1977, the claimant's employer sent the claimant to an industrial injury clinic located in Wisconsin where he was thoroughly examined and tested. As a result of this examination and diagnosis, the claimant returned to work for the employer in January, 1978, but within two weeks he quit work claiming that he was physically unable to do his job.

[ 75 Pa. Commw. Page 609]

At the referee's hearing, the medical director of the Wisconsin industrial injury clinic, an orthopedic surgeon, testified on behalf of the employer. He expressed his opinion, based upon tests and examinations, that the claimant had no physical problem that would prevent him from returning to work. The employer presented three lay witnesses, neighbors and associates of the claimant, who testified concerning the claimant's attendance at football and basketball games and school board meetings. A private investigator also testified for the employer. He had conducted a surveillance of the claimant, and motion picture films taken by him were admitted into evidence. In these the claimant appears without orthopedic aids, repairing his automobile, an activity which he had previously denied being able to do, and while so engaged squatting, twisting and making other mobile, fluid movements. The claimant admitted that he was the subject of these films.

The claimant testified that he attended sporting events and school board meetings; but he claimed to be unable to bend over at the waist or to stoop without a guarded motion. His treating physician as of March, 1978, gave as his opinion that the claimant was totally disabled. On cross-examination the doctor was presented with a hypothetical question in which he was told to assume that the claimant engaged in activities either admitted by the claimant or testified to by the employer's witnesses or shown in the ...


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