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RONALD SCOBBIE v. WORKMEN'S COMPENSATION APPEAL BOARD (GREENVILLE STEEL CAR COMPANY) (08/08/88)

decided: August 8, 1988.

RONALD SCOBBIE, PETITIONER
v.
WORKMEN'S COMPENSATION APPEAL BOARD (GREENVILLE STEEL CAR COMPANY), RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in the case of Ronald Scobbie v. Greenville Steel Car Company, No. A-89079.

COUNSEL

W. Allen Dill, Fruit, Dill, Goodwin & Scholl, for petitioner.

Eugene F. Scanlin, Jr., Dickie, McCamey & Chilcote, P.C., for respondent.

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

Author: Doyle

[ 118 Pa. Commw. Page 425]

Ronald Scobbie (Claimant) petitions for review of an order of the Workmen's Compensation Appeal Board (Board) affirming a decision of a referee which suspended Claimant's workmen's compensation benefits.

Claimant was last employed as a welder by the Greenville Steel Car Company (Employer). On January 13, 1981, Claimant injured his lower back in the course of his employment and began receiving benefits for total disability under a Notice of Compensation Payable. On May 24, 1982, Employer filed a petition to terminate benefits, alleging Claimant had fully recovered from his work-related injury as of May 18, 1982. Attached to this

[ 118 Pa. Commw. Page 426]

    petition was an affidavit of recovery of Dr. William McWhirter, who examined Claimant on May 12, 1982 and pronounced him fully recovered and able to resume his welding job without limitation. An automatic supersedeas of benefits was effected.*fn1

Hearings on the termination petition were held before the referee on March 16, 1983 and July 28, 1983, at which Claimant and his medical witness, Dr. Mark Stabile, testified, and the deposition testimony of Dr. McWhirter was admitted. In his deposition, Dr. McWhirter opined that Claimant could return to work without limitation, although Claimant continued to suffer a ten percent permanent partial disability from his accident. Dr. McWhirter also testified that, at the time he certified Claimant to return to work, he knew that Employer's plant had been closed.

The referee made a specific credibility finding in favor of Dr. McWhirter and against Dr. Stabile, but then concluded that because Employer failed to show that all of Claimant's disability had terminated as of May 17, 1982, Employer was not entitled to a termination. However, the referee further concluded that Employer was entitled to a "suspension" of compensation to Claimant since he was "sufficiently recovered to return to his prior employment." On appeal, the Board affirmed,*fn2 and Claimant petitions this Court for review.*fn3

[ 118 Pa. Commw. Page 427]

Employer does not contest that the termination petition was properly denied, since it failed to show that Claimant's "disability" had ceased entirely, or, that it had been reduced and that work Claimant was capable of performing was available to him. Coastal Tank Lines, Inc. v. Workmen's Compensation Appeal Board (Swick), 72 Pa. Commonwealth Ct. 308, 457 A.2d 149 (1983). Accordingly, the sole issue presented to us by this appeal is whether the ...


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