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THOMAS W. BUSCHE v. WORKMEN'S COMPENSATION APPEAL BOARD (TOWNSEND AND BOTTUM (10/13/83)

decided: October 13, 1983.

THOMAS W. BUSCHE, JR., PETITIONER
v.
WORKMEN'S COMPENSATION APPEAL BOARD (TOWNSEND AND BOTTUM, INC. ET AL.), RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in the case of Thomas W. Busche, Jr. v. Townsend and Bottum, Inc., No. A-80073.

COUNSEL

Ernest B. Orsatti, Jubelirer, Pass & Intrieri, P.C., for petitioner.

Stewart H. Harn, with him Fred C. Trenor, Meyer, Darragh, Buckler, Bebenek & Eck, for respondent, Townsend and Bottum, Inc.

Martin K. Brigham, with him Joseph Lurie, Galfand, Berger, Senesky, Lurie & March, for Amicus Curiae, Pennsylvania ALF-CIO.

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

Author: Barbieri

[ 77 Pa. Commw. Page 470]

Claimant in this Workmen's Compensation case, Thomas W. Busche, Jr., appeals to this Court from an order of the Workmen's Compensation Appeal Board, affirming a referee's denial of his petition for reinstatement, as of May 14, 1979, of compensation payments by his employer, Townsend & Bottum, Inc. Claimant was originally awarded compensation for total disability as the result of a heart attack suffered when lifting heavy cylinders weighing approximately one hundred fifty pounds. He underwent coronary by-pass surgery, was paid compensation from May 15, 1975 through November 18, 1975, and on that date,

[ 77 Pa. Commw. Page 471]

    while continuing to be disabled, was reemployed at a light duty post in a job created for him by his employer who discontinued payments of compensation as of November 18, 1975. While the referee states that "compensation benefits were suspended" on November 19, 1975, the record contains no indication that a suspension agreement was entered into,*fn1 nor is there any evidence of any other authorized basis for discontinuing payments.*fn2

At the first hearing held before the referee, on December 12, 1979, the referee stated that since Claimant was seeking reinstatement of compensation as of May 15, 1979, asserting that he could no longer perform his usual work as a plumber, the burden was on the Claimant. The referee's significant findings are as follows:

4. On November 19, 1975, Claimant's compensation benefits were suspended when he returned

[ 77 Pa. Commw. Page 472]

    to work on light duty status in a special job which was created for ...


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