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JOSEPH T. BUCKLEY v. WORKMEN'S COMPENSATION APPEAL BOARD (CORBO'S AM PM MINI MARKET) (08/31/87)

decided: August 31, 1987.

JOSEPH T. BUCKLEY, PETITIONER
v.
WORKMEN'S COMPENSATION APPEAL BOARD (CORBO'S AM PM MINI MARKET), RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board, in case of Joseph T. Buckley v. Corbo's AM-PM Mini Market, No. A-90992.

COUNSEL

Emeline L. K. Diener, for petitioner.

Sue Ellen Jurman, with her, Charles S. Katz, Jr. and Jan M. Ritchie, Swartz, Campbell & Detweiler, for respondent, Corbo's AM PM Mini Market.

Judges Craig and Doyle, and Senior Judge Barbieri, sitting as a panel of three. Opinion by Judge Doyle.

Author: Doyle

[ 109 Pa. Commw. Page 65]

This is an appeal by Joseph T. Buckley (Claimant) from an order of the Workmen's Compensation Appeal Board (Board) affirming a referee's decision, which granted Claimant total disability benefits from May 20 through September 14, 1984; terminated compensation on September 15, 1984; granted payment of some of Claimant's medical expenses, but denied others; and denied Claimant's request for attorney's fees under Section 440 of The Pennsylvania Workmen's Compensation Act (Act).*fn1

[ 109 Pa. Commw. Page 66]

The referee found that Claimant had been employed as a clerk by Corbo's AM PM Mini Market (Employer) when, on December 29, 1983, he slipped and fell on a small piece of meat during the course of his employment. In so doing he twisted his back, which became sore immediately. At the time of this incident Claimant was employed concurrently by John Wanamaker Company (Wanamaker's) as a carpet salesman. Claimant did not file his claim petition until September 4, 1984, because he lost no significant amount of time from work due to the fall until that date.

The referee further found that Claimant's normal pre-injury duties with Employer were in the nature of light work and that when he returned to work after December 29, he was able to perform his normal duties without evidence of disability. However, Claimant was terminated by Employer at the end of March 1984 because of a $130 overage in his cash drawer; he was not terminated because of his disability. The referee specifically found, "[c]laimant did not leave his job with [Employer] because of the compensable injury of December 29, 1983 having been discharged for other reasons."*fn2 Following his discharge by Employer, Claimant continued nevertheless to work at his other position at Wanamaker's. On May 14, 1984, however, Claimant went to the emergency room of the Bryn Mawr Hospital because of pain and numbness in his right leg, and on May 24, 1984, he was admitted to that hospital and subsequently underwent back surgery for a herniated disc.

The referee determined that Claimant's December 29 fall rendered him totally disabled on May 20, 1984, and that his disability continued through September 14, 1984, at which time, on September 15, 1984, Claimant

[ 109 Pa. Commw. Page 67]

    returned to his job at Wanamaker's, and further found that Claimant would have been capable of performing his regular duties with Employer had he not been fired. The referee also awarded Claimant only $1,075 out of $10,697 in medical expenses sought, providing no explanation for his disallowance of the rest. Finally, attorney's fees were denied, the referee having concluded that a reasonable basis existed for the contest.

Claimant presents four issues for our consideration and we shall examine them keeping in mind that our scope of review is limited to determining whether there has been a constitutional violation or an error of law, or whether the findings of fact are supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa. C.S. ยง 704; Kirkwood v. Unemployment Compensation Board of Review, 106 Pa. Commonwealth Ct. 92, 525 A.2d 841 (1987). Credibility matters are for the referee, and in making credibility determinations, he may accept or reject the testimony of any ...


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