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FRANCIS M. ZIMCOSKY v. WORKMEN'S COMPENSATION APPEAL BOARD (UNITED STATES STEEL CORPORATION) (07/27/88)

decided: July 27, 1988.

FRANCIS M. ZIMCOSKY, PETITIONER
v.
WORKMEN'S COMPENSATION APPEAL BOARD (UNITED STATES STEEL CORPORATION), RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in the case of Francis M. Zimcosky v. United States Steel Corporation, No. A-91081.

COUNSEL

John M. Zeglen, for petitioner.

Robert C. Jones, for respondent, United States Steel Corporation.

President Judge Crumlish, Jr., Judge Colins, and Senior Judge Blatt, sitting as a panel of three. Opinion by Judge Colins. Dissenting Opinion by President Judge Crumlish, Jr.

Author: Colins

[ 118 Pa. Commw. Page 211]

Francis M. Zimcosky (claimant) appeals an order of the Workmen's Compensation Appeal Board (Board) which affirmed the referee's decision granting the suspension petition of United States Steel Corporation (employer).*fn1

Claimant, a millwright, suffered an injury on June 12, 1984, during the course of his employment. Claimant was not immediately placed on workmen's compensation. On July 13, 1984, claimant's department was closed down and all workers in that department were placed on layoff status. At that time, claimant was placed on workmen's compensation pursuant to an Agreement for Disability for Permanent Injury, effective July 14, 1984. On or about November 30, 1984, claimant was examined by employer's plant physician, Dr. Karen Kuhns (Dr. Kuhns), who released him to return to his pre-injury job. However, because his department had been shut down, no job was available to him.

On December 31, 1984, the employer filed a Petition to Suspend benefits and requested a supersedeas which was granted. Several hearings were held on the suspension petition wherein both parties presented testimony as to claimant's injury. The referee suspended claimant's benefits as of November 30, 1984, based upon the report and deposition testimony of Dr. Kuhns. Claimant appealed to the Board, which affirmed the decision of the referee and dismissed claimant's appeal. The matter is now before us upon claimant's Petition for Review.

Claimant raises several issues on appeal: 1) whether the referee erred in concluding that the employer had

[ 118 Pa. Commw. Page 212]

    met its burden of proof absent evidence that work was available to claimant and that claimant was capable of doing such work; 2) whether the Board erred in failing to disregard the findings of fact of the referee because the referee failed to make findings of fact on the availability of work; 3) whether the Board failed to disregard the findings of fact of the referee because he capriciously disregarded competent evidence; 4) whether the Board erred in applying the wrong scope of review; and 5) whether the Board erred in failing to disregard the findings of facts of the referee because they were not supported by substantial evidence.

Initially, we must note that this Court's scope of review is limited to a determination of whether constitutional rights were violated, an error of law was committed or whether the necessary findings of fact are supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa. C.S. ยง 704.

An employer who seeks to terminate or suspend a claimant's workmen's compensation benefits has the burden of proving that the claimant's disability has ceased or has been reduced, that work is available to the claimant and that the claimant is capable of doing such work. Schiavo v. Workmen's Compensation ...


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