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GLABERN CORPORATION ET AL. v. WORKMEN'S COMPENSATION APPEAL BOARD (MICHAEL MOCCIA) (08/07/84)

decided: August 7, 1984.

GLABERN CORPORATION ET AL., PETITIONERS
v.
WORKMEN'S COMPENSATION APPEAL BOARD (MICHAEL MOCCIA), RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in the case of Michael Moccia v. Glabern Corporation, No. A-80130.

COUNSEL

Susan McLaughlin, with her, David L. Pennington, Harvey, Pennington, Herting & Renneisen, Ltd., for petitioner.

Arthur G. Nassau, for respondent, Michael Moccia.

Judges Williams, Jr., MacPhail and Doyle, sitting as a panel of three. Opinion by Judge Williams, Jr.

Author: Williams

[ 84 Pa. Commw. Page 382]

The Glabern Corporation (Glabern) and its insurance carrier have appealed from an order of the Workmen's Compensation Appeal Board (Board) affirming a referee's denial of Glabern's petition to terminate the benefits of Michael Moccia (claimant).

On November 12, 1974, the claimant sprained several parts of his body, including his neck and the left side of his spine bone, while working as a truck driver for Glabern. At the time of his accident the claimant was almost 59 years old; he had a 10th grade education; and he had been a truck driver for most of his vocational life. As a result of the claimant's injuries, the employer issued a Notice of Compensation Payable, dated December 18, 1974, pursuant to which the claimant was to receive $106.00 a week for total disability.

On April 19, 1976, Glabern filed a petition to terminate the claimant's benefits. The petition alleged that the claimant had fully recovered from his injuries, and that he was able to resume work without limitation as of April 6, 1976.

At various times between May 1976 and September of 1977, hearings regarding the employer's petition were held before a referee. The employer's medical witness, Dr. William H. Simon, opined that the claimant had completely recovered from his injuries as of the date alleged in the petition to terminate benefits. The claimant's medical witness, Dr. Raymond O. Stein, testified that the claimant had a

[ 84 Pa. Commw. Page 383]

    residual physical disability from his injuries. Dr. Stein also concluded that the claimant could never again work as a truck driver and could only do work of a sedentary nature.

In light of the opinion of the claimant's medical witness, Glabern proceeded to present the testimony of a vocational rehabilitation expert, Robert P. Wolf. Mr. Wolf testified that there were jobs available to the claimant; and offered a list of specific job opening which, in his view, were within the claimant's qualifications. That testimony was given in response to a hypothetical question which assumed the truth of Dr. Stein's description of the claimant's physical condition, and which also took into account the claimant's age, education and work experience. The claimant offered no evidence to rebut the testimony of Mr. Wolf.

On February 16, 1978, the referee issued a decision which included three factual findings. Only two of those findings are of significance here. They were as follows: (1) that as of April 6, 1976, the claimant still had some residual physical disability as a result of his injuries, but was able to perform sedentary work; and (2) that the employer had sustained its burden of proving that, given the claimant's residual disability, age, education and work experience, there were ...


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