Appeal from the Order of the Workmen's Compensation Appeal Board in the case of Mark M. Gussey v. Bell Telephone Company, No. A-78544.
Hubert Thurschwell, with him, Robert J. Costagliola, for petitioner.
Amiel B. Caramanna, Jr., with him, Alexander J. Pentecost, for respondent, Mark M. Gussey.
Judges MacPhail and Colins, and Senior Judge Kalish, sitting as a panel of three. Opinion by Judge Colins.
[ 91 Pa. Commw. Page 114]
Bell Telephone Company of Pennsylvania (employer) appeals an order of the Workmen's Compensation Appeal Board (Board), affirming the referee's determination that Mark M. Gussey's (claimant) disability had not ceased and that attorney's fees and penalties should be assessed against employer.
Claimant was injured in an accident while working for Bell on February 17, 1977. The employer filed a Notice of Compensation Payable and paid compensation until March 12, 1977 when payments were unilaterally stopped. On August 28, 1978, claimant filed a Review Petition alleging that his compensation had been improperly terminated. The employer asked for a last-minute continuance, which was granted, at which time the referee issued an interlocutory order stating that the employer had illegally stopped payment and these payments were to be reinstated retroactively. Attorney's fees were awarded to claimant, because the referee found no reasonable basis for termination under the Pennsylvania Workmen's Compensation Act (Act).*fn1
The Board granted employer's Petition for Supersedeas and remanded to the referee for an evidentiary hearing to be treated as a petition to terminate.
The referee found that claimant's disability had not ceased or changed in character or extent on March 13, 1977 and that claimant had been totally disabled for any type of work since February 18, 1977 as a result of chronic lumbrodorsal and lumbrosacral sprains resulting from his injury, osteoarthritis (which was
[ 91 Pa. Commw. Page 115]
aggravated by the injury), fibromyositis of the neck and shoulder muscles, and cerebral concussion with post-concussion syndrome. Depositions had been taken from two doctors offered by claimant and two by the employer. Claimant's doctors testified that he was totally disabled for his former job. The employer's two medical witnesses testified that claimant could have returned to work on April 18, 1977. A third medical witness opined that claimant could do light and sedentary work. A Bell investigator testified that he saw claimant performing activities inconsistent with his alleged disability and a Bell employee testified that there was work available to claimant which did not involve climbing, bending or lifting. Employer was ordered to reinstate compensation, pay a 20% penalty, and pay claimant's attorney fees because there was no reasonable basis for the defendant to terminate compensation.
The Board granted employer's Petition for Supersedeas as to the counsel fees, denied as to compensation, and remanded to the referee for a separate hearing on the penalties. The referee's failure to list two of employer's witnesses, who had testified that claimant was not disabled, was found to be improper.
The referee again found that there was no reasonable basis for the employer to terminate, that the stoppage was illegal under the Act,*fn2 and that the employer did not sustain its burden to prove that claimant's disability had ceased or changed. The termination petition was dismissed and employer was ordered to reinstate ...