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CHARLES W. CRANKSHAW v. WORKMEN'S COMPENSATION APPEAL BOARD (COUNTY ALLEGHENY) (09/29/88)

decided: September 29, 1988.

CHARLES W. CRANKSHAW, PETITIONER
v.
WORKMEN'S COMPENSATION APPEAL BOARD (COUNTY OF ALLEGHENY), RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in the case of Charles Crankshaw v. County of Allegheny, No. A-91570.

COUNSEL

Henry Lewis Miller, with him, Kenneth W. Lee, Plowman and Spiegel, for petitioner.

Charles P. Falk, Baskin, Flaherty, Elliott & Mannino, P.C., for respondents.

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

Author: Colins

[ 120 Pa. Commw. Page 149]

Charles W. Crankshaw (petitioner) appeals an order of the Workmen's Compensation Appeal Board (Board) which affirmed a referee's decision granting the petition filed by his employer, the County of Allegheny (employer), and suspending his workmen's compensation.*fn1

Petitioner was employed by the County as a Construction Materials Inspector when, on October 6, 1983, he fell some five feet onto a concrete surface and injured his back. Unable to perform his duties of inspecting all County road construction projects, petitioner received compensation pursuant to an agreement while undergoing treatment by Dr. George McCollum, a family practitioner, and participating in the Harmarville Chronic Pain Program under the care of Dr. William Seltzer. Petitioner twice attempted to return to work following his injury, in May and June, 1985, but found that his chronic pain prevented him from doing so.

On September 11, 1985, the County filed a petition to terminate compensation, alleging that petitioner had fully recovered from his work-related injury and had returned to the same or similar work at comparable wages as of June 17, 1985. The petitioner filed a timely answer denying that he had fully recovered and countered by filing a claim petition on December 2, 1985, in which he attributed not only a vertebral compression fracture to his injury but also chronic pain syndrome and severe depression.

[ 120 Pa. Commw. Page 150]

The petitions were consolidated for a hearing before the referee. On the basis of the testimony of the employer's expert, Dr. Seltzer, specifically found credible, the referee determined that petitioner was able to perform the work required of a Construction Inspector as of June 17, 1985.*fn2 Then noting that there was no evidence that petitioner had fully recovered from his work injury but that the employer had established that petitioner was able to return to work without a loss of earnings, the referee suspended compensation. Further, she rejected petitioner's allegations of a work-related depression and dismissed the claim petition.

During the pendency of his subsequent appeal to the Board, petitioner filed a request to reopen the record in order that he might present additional medical evidence consisting of a newly-obtained diagnosis purportedly pinpointing the source of his chronic pain. He argued that he had only recently consulted this new physician, Dr. Mantica, such that his testimony and the results of newly-performed neurological tests were unavailable at the referee's hearing. The Board affirmed the referee's decision and, by separate order, denied the request to reopen the record. This appeal followed.

Upon appeal, petitioner contends that the Board abused its discretion in failing to grant his request to reopen the record based on after-discovered medical evidence. He also asserts that the testimony of Dr. Seltzer could not support the referee's decision because it was purportedly based on erroneous assumptions as to petitioner's work responsibilities and, hence, his capabilities.

Turning to petitioner's initial contention, we note that our Supreme Court has recently reaffirmed the broad discretion to be ...


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