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PIPER AIRCRAFT CORPORATION v. WORKMEN'S COMPENSATION APPEAL BOARD (BIBEY) (01/04/85)

decided: January 4, 1985.

PIPER AIRCRAFT CORPORATION, PETITIONER
v.
WORKMEN'S COMPENSATION APPEAL BOARD (BIBEY), RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in the case of Margaret Bibey v. Piper Aircraft, No. A-84788.

COUNSEL

Michael J. Wagner, with him, David P. Andrews, Evey, Routch, Black, Dorezas, Magee & Andrews, for petitioner.

Charles R. Rosamilia, Jr., Rosamilia & O'Connor, for respondent, Margaret Bibey.

Judges Rogers, Doyle and Colins, sitting as a panel of three. Opinion by Judge Doyle.

Author: Doyle

[ 86 Pa. Commw. Page 615]

Piper Aircraft Company (Employer) appeals from an order of the Workmen's Compensation Appeal Board (Board) which reversed the referee's decision which had terminated the total disability payments to Margaret Bibey (Claimant). We affirm.

Claimant suffered a work-related injury to her lower back on February 21, 1979, and began receiving partial disability payments pursuant to a Notice of

[ 86 Pa. Commw. Page 616]

Compensation Payable dated March 8, 1979. In March of 1980, a supplemental agreement was entered under which Claimant received total disability payments. Employer filed a petition for suspension in October of 1980, alleging that Claimant had returned to work without a loss in earning power. At that time Claimant denied that she was physically capable of performing any work available to her. After an initial hearing before the referee, Claimant was permitted by her physician to return to work as a "Reinforced Plastic Worker C," a position with similar pay, but which required less physical effort than her former position. Claimant performed this work from April 30, 1981 until May 29, 1981, when she quit, alleging that her pain and discomfort were too severe to continue. Additional hearings were held in which medical testimony was submitted as to Claimant's alleged disability. The referee accepted as credible the testimony of Dr. J. Joseph Danyo, an orthopedic surgeon, who examined Claimant on August 18, 1981. Dr. Danyo testified that as a result of his examination he concluded that Claimant was deliberately exaggerating and falsifying her disability because of her complete lack of motivation to work. Dr. Danyo stated that, although Claimant suffered some residual disability from her 1979 injury, such disability would not prevent her from performing light work which did not involve repeated bending or twisting, and did not require the lifting of more than twenty-five pounds. Other testimony established that the position of Reinforced Plastic Worker C, the work which Claimant had performed in April and May of 1981, qualified as such light work. Dr. Danyo testified that Claimant could return to this position on a part-time basis for a three-month trial period, at which time an additional examination would be required.

[ 86 Pa. Commw. Page 617]

On the basis of this evidence, the referee found that Claimant was capable of performing the part-time work available to her, and that her failure to make a reasonable effort to perform such work constituted a voluntary removal from the labor market as of November 18, 1981, the date when Dr. Danyo's suggested three-month trial period would have been completed. Thus, the referee awarded benefits for Claimant's partial loss of earning power between August 18, 1981 and November 18, 1981, but terminated all benefits after that date.

On appeal, the Board reversed the determination of the referee and reinstated total disability benefits, concluding that, although there was evidence that Claimant was capable of performing the position of Reinforced Plastic Worker C as of August 18, 1981, there was no evidence to support the finding that such a position was available to the Claimant on that date. In addition, the Board concluded ...


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