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SAMUEL SMITH v. COMMONWEALTH PENNSYLVANIA (06/20/85)

decided: June 20, 1985.

SAMUEL SMITH, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, WORKMEN'S COMPENSATION APPEAL BOARD (WESTINGHOUSE ELECTRIC CORPORATION), RESPONDENTS. WESTINGHOUSE ELECTRIC CORPORATION, PETITIONER V. COMMONWEALTH OF PENNSYLVANIA, WORKMEN'S COMPENSATION APPEAL BOARD (SAMUEL SMITH), RESPONDENTS



Appeals from the Order of the Workmen's Compensation Appeal Board in the case of Samuel Smith v. Westinghouse Electric Corporation, No. A-81065.

COUNSEL

Robert J. Trageser, with him, Dan P. Wimer, for petitioner/respondent, Samuel Smith.

Robert W. Murdoch, with him, Paul K. Greer, Robert C. Jones and Paul A. Robb, Jones, Gregg, Creehan & Gerace, for respondent/petitioner, Westinghouse Electric Corporation.

Judges MacPhail, Doyle and Palladino, sitting as a panel of three. Opinion by Judge Palladino. Judge Williams, Jr., did not participate in the decision in this case.

Author: Palladino

[ 90 Pa. Commw. Page 248]

This case presents cross-appeals by Samuel Smith (Claimant) and Westinghouse Electric Corporation (Employer) from an order of the Pennsylvania Workmen's Compensation Appeal Board (Board) which modified and affirmed a referee's decision suspending a notice of compensation payable to Claimant. We affirm the Board's order.

Claimant was employed as an assistant accounting analyst by Employer on May 4, 1977 when Claimant fell on the stairs at work and injured his back. Pursuant to a Notice of Compensation Payable, Claimant was paid workmen's compensation benefits from May 4, 1977 through November 23, 1977. On December 7, 1977 Employer filed a Termination Petition alleging that Claimant was able to return to work on November 23, 1977 and attached a Physician's Affidavit of Recovery stating that Claimant had sufficiently recovered from the May 4, 1977 injury and was able to resume his previous occupation, without limitation, on November 23, 1977.*fn1 Employer ceased making compensation payments to Claimant on November 23, 1977 pursuant to the automatic supersedeas provisions of section 413(a) of The Pennsylvania Workmen's Compensation Act (Act).*fn2

[ 90 Pa. Commw. Page 249]

Claimant subsequently filed a Petition for Reinstatement which was consolidated with Employer's Petition for Termination for purposes of hearings before the referee. The referee held six days of hearings at which Claimant introduced the deposition testimony of four physicians:

1) Dr. Slater, a board certified surgeon, examined Claimant on August 29, 1977 with regard to injuries received by Claimant in a non-work-related automobile accident which occurred on December 23, 1976. Dr. Slater testified that Claimant had told him that he had no back pain after the automobile accident but that the doctor had seen a report from a chiropractor diagnosing a lumbar sprain on March 24, 1977. Dr. Slater was therefore unable to unequivocally establish the cause of Claimant's disability;

2) Dr. Newman, a chiropractor, was first consulted by Claimant on March 24, 1977 at which time he diagnosed Claimant as having an "acute cervical/dorsal/lumbar/sacral strain" which was not caused by an injury or illness arising from Claimant's employment;

3) Dr. Sessoms, a board-certified family practitioner, first saw Claimant in August of 1978 and testified that Claimant's back pain "more than likely" was initially the result of the May 4, 1977 fall and was ...


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