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JOHN SENG v. WORKMEN'S COMPENSATION APPEAL BOARD (BRANCH MOTOR EXPRESS) (11/12/85)

decided: November 12, 1985.

JOHN SENG, PETITIONER
v.
WORKMEN'S COMPENSATION APPEAL BOARD (BRANCH MOTOR EXPRESS), RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in the case of John Seng v. Branch Motor Express, No. A-84530.

COUNSEL

Robert E. Benion, for petitioner.

Matthew D. Dempsey, with him, Joseph P. Lenahan, Lenahan & Dempsey, P.C., for respondent, Branch Motor Express.

Judges Rogers and MacPhail, and Senior Judge Barbieri, sitting as a panel of three. Opinion by Senior Judge Barbieri. Concurring and Dissenting Opinion by Judge MacPhail.

Author: Barbieri

[ 92 Pa. Commw. Page 620]

John Seng, Claimant, appeals here the order of the Workmen's Compensation Appeal Board (Board), which sustained the decision of a referee on a termination petition filed by Branch Motor Express (Employer)

[ 92 Pa. Commw. Page 621]

    in which it was determined that Claimant's total disability had been reduced to partial disability and, therefore, the period of payments was reduced to 500 weeks, but with weekly benefit payments continuing at the total disability rate for lack of proof of available, suitable work which Claimant could perform. Claimant also seeks review of denial of his request for counsel fees.

Claimant suffered back injuries on June 26, 1979 in the course of his employment as a truck driver for which compensation was paid at the maximum rate of $227.00 per week under a Notice of Compensation Payable. These payments were made until the filing of the termination petition by Employer on March 13, 1981, in which an affidavit of a physician stated that Claimant was able to return to work as a truck driver as of March 2, 1981.

The referee's decision, including twenty statements designated Findings of Fact which basically recite various items in the testimony, actually contains factual determinations by him recorded under DISCUSSION, as follows:

I found the medical evidence of the claimant more convincing. All of the doctors noted the consistency of the symptoms. Only Dr. Sutliff found an example of inappropriate physical response. It appears that the doctors feel that the claimant has pain and is indeed suffering from a condition.

There is diversity in opinion about the severity of the claimant's condition. The defendant's physicians feel that the claimant could attempt to return to work. I noted they did not say that the claimant suffers no disability at this time. Dr. Amsler felt that the claimant could probably do the work. Yet, two of

[ 92 Pa. Commw. Page 622]

    claimant's physicians feel that he is disabled from performing any type of work.

It appears to me that the most persuasive of the medical opinions was that the claimant could perform a job but not his position of truck driving. I also noted that the claimant testified that prolonged sitting rendered him severely disabled. I found this testimony convincing. It appears to me, taking the medical depositions together, that the defendant has shown that the claimant is not totally ...


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