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SHENANGO v. WORKMEN'S COMPENSATION APPEAL BOARD (SWAN) (07/07/87)

decided: July 7, 1987.

SHENANGO, INC., PETITIONER
v.
WORKMEN'S COMPENSATION APPEAL BOARD (SWAN), RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board, in case of Ralph J. Swan v. Shenango, Inc., No. A-87684.

COUNSEL

Jerry S. McDevitt, Kirkpatrick & Lockhart, for petitioner.

Edwin Beachler, with him, Richard G. Spagnolli, Caroselli, Spagnolli & Beachler, for respondent, Ralph Swan.

Judges Craig and Palladino, and Senior Judge Kalish, sitting as a panel of three. Opinion by Judge Craig. Judge Palladino concurs in the result only.

Author: Craig

[ 107 Pa. Commw. Page 255]

Shenango, Inc., the employer, appeals from an order of the Workmen's Compensation Appeal Board granting benefits to Ralph J. Swan, a claimant. We affirm.

According to the referee's findings of fact, Shenango had recently hired the claimant as a probationary employee at the time of his injury. On July 25, 1981, while working as a ladle cleaner, a weight fell on the claimant's hand and injured his left ring finger. The claimant returned to his ladle cleaning job on July 27, 1981 but experienced difficulty with his injured finger. His foreman then transferred the claimant to a pre-existing janitorial position in the company cafeteria. The claimant did not suffer a loss of earnings because of the transfer. On August 10, 1981, Shenango terminated the claimant's employment in the janitorial position.

On August 10, 1982, the referee stated the following "Conclusion of Law", actually, a finding:

4. Your Referee accepts in part the testimony of Dr. Marryshow and in part the testimony of Dr. Slater that the Claimant was disabled from performing his regular job as a ladle cleaner but that the Claimant was not disabled from performing a job as laborer cleaning the cafeteria which according to testimony of Ron Connolly

[ 107 Pa. Commw. Page 256]

    would have been available to him with no loss of earnings until he was released to return to a ladle cleaner on January 5, 1982.

The referee also expressed the following conclusion of law:

7. The Claimant in his Claim Petition has the initial burden of proving that he was disabled from performing his regular job as a ladle cleaner. The Claimant having met that burden, would be entitled to compensation benefits, however, Defendant then met its burden by showing that there was work available (the laborer job that involved cleaning the cafeteria) that the Claimant could perform without a loss of earnings.

The referee accordingly suspended the claimant's benefits.

The board, in an order dated June 2, 1983, remanded the case to the referee for additional findings of fact concerning the reason for the claimant's ...


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