Appeal from the Order of the Workmen's Compensation Appeal Board in case of Dominic C. Backowski v. E.W. Tire Company, No. A-82930.
Edward Jaffee Abes, Abes & Begler, for petitioner.
David P. Helwig, Sharlock, Repcheck, Engel & Mahler, for respondents.
Judges Doyle and Colins, and Senior Judge Barbieri, sitting as a panel of three. Opinion by Senior Judge Barbieri. Judge Williams, Jr., did not participate in the decision in this case. Dissenting Opinion by Judge Doyle.
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Dominic C. Backowski, Claimant, appeals here the order of the Workmen's Compensation Appeal Board
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(Board), which sustained a decision of a referee in dismissing a claim petition for compensation filed by Claimant.
The referee's findings are conflicting. Compensable disability is established by the following:
2. On October 13 and October 16, 1979, claimant sustained a lumbar sprain which aggravated his pre-existing developmental flaw in the fifth lumbar vertebra while performing his duties as a warehouse manager for employer on employer's premises.
3. Timely and proper notice of said injury was given to employer on the same dates.
There follow findings which are not in question establishing periods of disability for which full wages were paid by Claimant's employer with the result that Claimant's compensable period is limited to the time between December 17, 1979 and April 30, 1981. There is testimony of Charles M. Cohen, Ph. D., a psychologist, retained by Claimant's employer on September 10, 1981, that certain sedentary jobs had been available, reflected in a referee's finding, during periods from January 16, 1980 through February 25, 1981.
There are other findings, however, as follows:
14. Claimant failed to adduce competent medical evidence to establish a legal nexus between said injury and his alleged disability.
15. It was claimant's contention that he was entitled to a suspension of compensation from October 17, 1979, through October 22, 1979, and for an indefinite period from April 30, 1981, and that he was entitled to compensation for total disability from December 18, 1979, through April 29, 1981.
16. The reasonable inference is that claimant preferred to complete his education in computer
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programming rather than return to work for employer or for any other firm.
17. It is significant that Dr. Phillips, claimant's medical witness, found or made no definite positive findings as a result of his physical examination of claimant on November 11, 1979. It was only the result of x-rays that the developmental flaw (spondylolysis and spondylolisthesis) was discovered.
18. Said flaw was not work-related.
19. Claimant failed to sustain his burden of proof.
Other findings state that Claimant was paid full wages during disability periods, until he was laid-off as of December 17, 1979, with failure of the employer to rehire him as of March 1, 1980, when the lay-off period ended. As noted, Claimant seeks total disability compensation for the period following December 18, 1979 to April 29, 1981, and claimed at the referee level a suspension thereafter for continuing partial disability, admittedly without loss of earnings. The Board concluded that the burden of proof remained upon the Claimant so that the sole issue before the Board was whether the referee in disallowing compensation capriciously disregarded competent evidence. The Board stated:
The claimant has alleged total disability from December 17, 1979, when he was laid off from work until April 30, 1980 [sic], when he obtained his new job. The medical testimony by both parties clearly established that claimant's injury did prevent him returning to his job in his former capacity. The testimony also indicated that the claimant was ...