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A & P TEA COMPANY v. WORKMEN'S COMPENSATION APPEAL BOARD (GIGLIO) (03/21/88)

decided: March 21, 1988.

A & P TEA COMPANY, PETITIONER
v.
WORKMEN'S COMPENSATION APPEAL BOARD (GIGLIO), RESPONDENT



Appeal from the Order of the Workmen's Compensation Appeal Board, in case of Patricia Giglio v. A & P Tea Company, No. A-91947.

COUNSEL

Ronald F. Bove, Swartz, Campbell & Detweiler, for petitioner.

Frank J. Rubinate, for respondent, Patricia Giglio.

Judges Doyle and Palladino, and Senior Judge Kalish, sitting as a panel of three. Opinion by Judge Doyle.

Author: Doyle

[ 114 Pa. Commw. Page 508]

This is an appeal by the A & P Tea Company (Employer) from an order of the Workmen's Compensation Appeal Board (Board) which affirmed a referee's decision dismissing Employer's petition for suspension or modification of benefits. An understanding of the procedural history of this case is critical.

On June 28, 1978 Patricia Giglio (Claimant) sustained a compensable injury. Benefits were paid by Employer. Then on June 23, 1982 Employer filed a petition seeking alternatively to suspend or modify benefits. The petition was later amended at hearing to one seeking a termination of benefits.

Hearings were held before Referee Stief, a Bucks County referee, the last hearing being held on October 11, 1984. After the record was closed, but prior to the issuance of the decision, Referee Stief resigned. The case was reassigned to Referee Nickel who had been appointed as a referee on May 6, 1985. Referee Nickel was the "acting" Bucks County referee until he was reassigned to Lancaster County in early 1986.

[ 114 Pa. Commw. Page 509]

Referee Nickel, in his order, terminated Claimant's benefits effective January 20, 1983. Although his order terminated benefits, his findings of fact indicate that he found credible, inter alia, the portion of Claimant's doctor's testimony which indicated that as of May or June 1982 Claimant could work subject to standing and lifting restrictions. Yet, he also found credible that portion of Employer's physician's testimony which opined that Claimant was fully recovered from her 1978 injury and could return to work without restrictions. Employer's doctor had examined Claimant on April 8, 1981. He was, however, deposed on January 19, 1983; the following day, i.e., January 20, 1983, was the date that Referee Nickel used as the date benefits were to be terminated. It is obvious, however, that Employer's doctor's testimony as to Claimant's condition must relate to the date on which he examined Claimant (April 8, 1981) not to the date when he was deposed. Thus, the referee's findings are inconsistent because in crediting Employer's doctor he had to find that Claimant was fully recovered on April 8, 1981, but in crediting Claimant's doctor he had to find that Claimant had continuing disability and valid work restrictions in May or June of 1982. Despite this inconsistency, the referee determined that Claimant's disability had ceased as of January 20, 1983 and, thus, terminated benefits as of that date. Claimant appealed this order to the Board alleging, inter alia, that the findings of fact were inconsistent with each other and with the conclusions of law and that the referee who heard the testimony (Referee Stief) did not decide the case.

The Board reversed and remanded the case in an opinion and order which reads in its entirety as follows:

We have reviewed the Referee's Decision in this case and must reverse and remand. The Findings of Fact are ...


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