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RUSSELL O. F. METZGER v. WORKMEN'S COMPENSATION APPEAL BOARD (HEIDELBERG TOWNSHIP SUPERVISORS) (08/21/84)

decided: August 21, 1984.

RUSSELL O. F. METZGER, PETITIONER
v.
WORKMEN'S COMPENSATION APPEAL BOARD (HEIDELBERG TOWNSHIP SUPERVISORS), RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in the case of Russell O. F. Metzger v. Heidelberg Township Supervisors, No. A-82677.

COUNSEL

David G. Welty, for petitioner.

Michael P. Shay, Sigmon & Ross, P.C., for respondent, Heidelberg Township Supervisors.

Judges Doyle, Palladino and Barbieri, sitting as a panel of three. Opinion by Judge Doyle.

Author: Doyle

[ 84 Pa. Commw. Page 565]

This is an appeal by Russell O. F. Metzger (Claimant) from an order of the Workmen's Compensation Appeal Board (Board) which affirmed the decision of a referee suspending benefits.

[ 84 Pa. Commw. Page 566]

Claimant was an elected Supervisor who worked for Heidelberg Township as a road superintendent. In August of 1976, he injured his right arm and shoulder in a work-related fall. He received benefits under a notice of compensation payable until August of 1977 when he returned to work and signed a final receipt. He continued to work until January 31, 1978 when he resigned his position as supervisor and superintendent, but remained employed as a laborer through March of 1978. Beginning in June, 1978, Claimant became employed as a laborer in a neighboring township, where he worked until October, 1978.

On January 26, 1979, Claimant filed a petition to set aside the final receipt. Following a hearing, a referee concluded that Claimant had demonstrated that all disability due to the 1976 injury had not ceased at the signing of the final receipt and set it aside. The referee also concluded, however, that Claimant had failed to show that the residual disability resulted in a loss of earning power and suspended benefits as of the date the final receipt was signed. Claimant appealed and the Board affirmed. Petition for review by this Court followed.

We reverse because the referee, as affirmed by the Board, erred as a matter of law. The referee's relevant conclusions of law are as follows:

3. Accepting that the partial tear of the rotator cuff of the right shoulder either occurred or was aggravated by the incident occurring on August 9, 1976, the Referee finds that Claimant proved by sufficient competent evidence that all disability due to said injury in fact had not terminated as of August 2, 1976, [sic] wherefore the Final Receipt shall be set aside, within the meaning of ยง 434 of the Act.

[ 84 Pa. Commw. Page 5674]

. Claimant failed to prove by sufficient competent evidence that the residual disability resulting from the injury occurring on August 9, 1976 (or January 1977) was reflected in a loss of earning power on or after August 2, 1977, wherefore compensation payments shall be suspended ...


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