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JOHN J. MCMAHON v. WORKMEN'S COMPENSATION APPEAL BOARD (VOLKSWAGEN AMERICA AND SENTRY INSURANCE COMPANY) (07/05/88)

decided: July 5, 1988.

JOHN J. MCMAHON, PETITIONER,
v.
WORKMEN'S COMPENSATION APPEAL BOARD (VOLKSWAGEN OF AMERICA AND SENTRY INSURANCE COMPANY), RESPONDENTS



Appeal from No. A-92083, Workmen's Compensation Appeal Board.

COUNSEL

John S. Cupp, Jr., Cupp & Ritz, Uniontown, for petitioner.

Raymond Keisling, with him, Ronald Ganassi, Carnegie, for respondents.

Barry and Smith, JJ., and Narick, Senior Judge.

Author: Smith

[ 135 Pa. Commw. Page 3]

John J. McMahon (Claimant) appeals from a Workmen's Compensation Appeal Board (Board) decision affirming the referee's denial of Claimant's petition to set aside a final receipt and awarding payment of medical bills pursuant to Claimant's petition for review under The Pennsylvania Workmen's Compensation Act (Act).*fn1 Issues presented for review are whether the referee erred in determining that Claimant's disability had ended when he executed the final receipt; whether Claimant was unable to return to work because there was no job available when Claimant's lay-off ended; and whether the referee erred in awarding payment of Claimant's medical bills, but denying compensation for disability. We affirm the Board's decision.

Claimant, an assembler, injured his right shoulder at work on January 27, 1979 and was paid compensation for total disability from bicepital tendonitis for the period January, 1979 until August, 1979 when he returned to light duty

[ 135 Pa. Commw. Page 4]

    work sweeping floors and picking up paper pursuant to the collective bargaining agreement between Employer and Claimant's union. By supplemental agreements Claimant was reimbursed for medical expenses and received additional compensation from January to October of 1982. Claimant executed a final receipt on December 8, 1982 and returned to work as an alcohol rub-off again pursuant to the collective bargaining agreement and within medically prescribed limitations. Claimant was ultimately laid-off on June 15, 1984 due to complete plant closing for remodeling, and not recalled because of insufficient seniority. Claimant collected unemployment compensation until March 31, 1985 when he obtained employment but was later rejected for failure to pass a physical examination.

Claimant filed two petitions on April 11, 1985 against Volkswagen of America (Employer).*fn2 Claimant's petition to set aside final receipt alleged that he was returned by Employer to a specially created light duty job within medically prescribed limitations on December 3, 1982 and laid-off on June 15, 1984. The petition for review challenged Employer's denial of responsibility for Claimant's remaining unpaid medical bills related to his January 27, 1979 compensable injury.

The referee, after hearing, found that Employer's medical testimony was credible; that Claimant has a residual right shoulder disability which does not incapacitate him from performing his job; that Claimant failed to meet his burden of proof imposed by Section 434 of the Act*fn3 since no medical or lay testimony was presented to show that Claimant was disabled when he executed the December 8, 1982 final receipt; and that Claimant satisfied his burden of proving that substantial medical bills remain unpaid. The Board affirmed the referee and Claimant petitioned this Court for review. This Court's scope of review is limited to determining whether constitutional rights have been violated; whether an error of law was committed; or whether

[ 135 Pa. Commw. Page 5]

    any finding of fact necessary to support the decision is not supported by substantial evidence. Mellor v. Workmen's Compensation Appeal Board (Wilson Tires, Inc.), 102 Pa. Commonwealth Ct. 504, 518 A.2d 1308 (1986); ...


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