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CHARLES J. ABBOTT D/B/A ABBOTT BEER DISTRIBUTORS AND INSURANCE COMPANY NORTH AMERICA v. WORKMEN'S COMPENSATION APPEAL BOARD (SERWATKA) (12/18/86)

decided: December 18, 1986.

CHARLES J. ABBOTT D/B/A ABBOTT BEER DISTRIBUTORS AND INSURANCE COMPANY OF NORTH AMERICA, PETITIONERS
v.
WORKMEN'S COMPENSATION APPEAL BOARD (SERWATKA), RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board, in case of Thomas Serwatka v. Charles J. Abbott d/b/a Abbott Beer Distributors, No. A-89154.

COUNSEL

Richard L. McMillan, for petitioners.

Edward H. Walter, Jubelirer, Pass & Intrieri, P.C., for respondent, Thomas Serwatka.

Judges Barry, Colins (p.) and Palladino, sitting as a panel of three. Opinion by Judge Barry.

Author: Barry

[ 102 Pa. Commw. Page 510]

Charles J. Abbott d/b/a Abbott Beer Distributors (the employer) and the Insurance Company of North America, the petitioners, appeal an order of the Workmen's Compensation Appeal Board (Board) which affirmed

[ 102 Pa. Commw. Page 511]

    a decision of the referee denying petitioners' termination petition and, accordingly, permitting the claimant, Thomas Serwatka, to continue to collect benefits for total disability.

In December of 1981, the claimant suffered a cervical strain while working as a truck driver for the employer. He began collecting for total disability pursuant to a notice of compensation payable. On February 24, 1983, the employer filed a termination petition accompanied by an affidavit of recovery signed by the claimant's treating physician, Dr. Jonathan Hottenstein. Dr. Hottenstein was deposed by the employer and testified that, following an examination on January 11, 1983, he had released claimant to return to work with no limitations. Dr. Hottenstein recognized that claimant was still suffering some pain but hoped that he would be able to return to his former duties. Claimant attempted to return to work, but was informed that no work was available.

In early February of 1983, the claimant attempted to move a sofa away from a wall when he experienced extreme pain in the same part of his body as with the work related injury. Claimant went back to Dr. Hottenstein for an examination. Subsequently, Dr. Hottenstein was deposed by the claimant and then testified that he had changed his opinion and now believed that claimant could only return to light work, lifting no more than twenty to twenty-five pounds. Dr. Hottenstein testified that the onset of the pain in moving the sofa was an indication to him that the claimant had not, in fact, sufficiently recovered to return to work as a truck driver, which required the claimant to lift, inter alia, kegs of beer which weighed more than the twenty-five pound limitation placed on the claimant.

Upon review of the two depositions, the referee chose to believe the latter deposition in which the physician

[ 102 Pa. Commw. Page 512]

    opined that the claimant had recovered only enough to do light duty work. Since the employer failed to introduce any evidence concerning job availability within claimant's limitations, the referee denied the termination petition and permitted the payments for ...


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