Appeal from the Order of the Workmen's Compensation Appeal Board, in case of Angel L. Ortiz v. Fair Tex Mills, Inc., No. A-86742.
David G. Welty, for petitioner.
Martin J. Fallon, Jr., with him, David A. Pennington, Swartz, Campbell & Detweiler, for respondent, Fair Tex Mills, Inc.
Judges MacPhail and Palladino, and Senior Judge Barbieri, sitting as a panel of three. Opinion by Judge Palladino.
[ 102 Pa. Commw. Page 494]
Angel L. Ortiz (Petitioner) appeals from an order of the Workmen's Compensation Appeal Board (Board) affirming the termination of his compensation and the refusal of the referee to award him payment of a penalty pursuant to sections 413(b)*fn1 and 435*fn2 of The Pennsylvania Workmen's Compensation Act (Act). We affirm.
[ 102 Pa. Commw. Page 495]
On December 16, 1980, Petitioner sustained an injury to his cervical spine while on the job. Fair Tex, Inc. (Employer) paid him workmen's compensation pursuant to a notice of compensation payable. Alleging that Employer improperly terminated his compensation on February 11, 1981, Petitioner filed a reinstatement petition on March 12, 1981 which contained a request for payment of a penalty and counsel fees. Employer denied the allegation and on March 31, 1981 filed a suspension petition and requested supersedeas. The supersedeas request was denied on April 22, 1981. Employer, on June 29, 1981, filed a termination petition accompanied by an affidavit from Dr. Richard K. White stating that Petitioner was fully recovered and able to resume his prior job as of June 11, 1981.
The petitions for reinstatement, suspension and termination were joined for resolution before the referee. During the proceedings Petitioner presented as evidence the deposition of Dr. Parvis Kambin, who testified unequivocally that Petitioner remained fully disabled because of his work injury. Employer offered the deposition of Dr. White, who testified unequivocally that Petitioner was fully recovered from his work injury and able to resume his prior job.
On August 22, 1983 the referee issued his decision on the three petitions. He granted Employer's termination
[ 102 Pa. Commw. Page 496]
petition effective June 11, 1981 and dismissed both the reinstatement and suspension petition.*fn3 No penalty was imposed. The referee concluded:
Claimant [Petitioner] failed to prove by sufficient competent evidence that compensation ceased, improperly or otherwise, as of February 11, 1981, and Claimant failed to establish non-compliance by Defendant [Employer] with the Workmen's Compensation Act or the rules and regulations ...