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KAREN MACNEILL v. WORKMEN'S COMPENSATION APPEAL BOARD (DENNY'S (10/12/88)

decided: October 12, 1988.

KAREN MACNEILL, PETITIONER
v.
WORKMEN'S COMPENSATION APPEAL BOARD (DENNY'S, INC.), RESPONDENTS. DENNY'S, INC., PETITIONER V. WORKMEN'S COMPENSATION APPEAL BOARD (MACNEILL), RESPONDENTS



Appeals from the Order of the Workmen's Compensation Appeal Board in the case of Karen MacNeill v. Denny's, Inc., No. A-91418.

COUNSEL

Joel Persky, with him, Erica L. Light, Henderson & Goldberg, P.C., for petitioner/respondent, Karen MacNeill.

Frank R. Fleming, III, Houston Harbaugh, P.C., for respondent/petitioner, Denny's, Inc.

Judges Doyle and McGinley, and Senior Judge Kalish, sitting as a panel of three. Opinion by Judge McGinley. This decision was reached prior to the resignation of Judge MacPhail.

Author: Mcginley

[ 120 Pa. Commw. Page 321]

This is a cross-appeal from a decision of the Workmen's Compensation Appeal Board (Board) affirming in part and reversing in part a decision of the Referee. We affirm in part and we reverse in part.

Karen MacNeill (Claimant) was employed as a waitress by Denny's, Inc. (Employer). On May 6, 1984, during the course of her employment she fell and was injured when a chair on which she was about to sit was kicked out from under her. On July 2, 1984, Claimant filed a claim for compensation. On March 6, 1986, the Referee determined that Claimant was entitled to compensation benefits pursuant to Sections 306(a) and (c) of The Pennsylvania Workmen's Compensation Act (Act),*fn1 and he awarded her counsel fees pursuant to Section 440 of the Act.*fn2 Employer filed an appeal with the Board, which affirmed the award of benefits but

[ 120 Pa. Commw. Page 322]

    which reversed as to the award of counsel fees, holding that the Referee improperly awarded counsel fees sua sponte. Claimant appeals that part of the Board's order which reversed as to the award of counsel fees; Employer appeals that part of the Board's order which affirmed the award of benefits.

Our scope of review is limited to a determination of whether there has been a constitutional violation, an error of law or whether the findings of fact are supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa. C.S. ยง 704. Shenango, Inc. v. Workmen's Compensation Appeal Board (Swan), 107 Pa. Commonwealth Ct. 254, 528 A.2d 672 (1987).

Employer contends that the Referee erred by disregarding uncontroverted testimony that Claimant had recovered from her injury by December 13, 1984; Employer also contends that the Referee's decision that Claimant was disabled as a result of the work-related injury and remains unable to perform her duties was not supported by substantial evidence. We address these contentions seriatim.

Employer introduced into evidence the deposition of Bruce I. Tetalman, M.D., who examined Claimant at Employer's request.*fn3 Dr. Tetalman examined Claimant on October 4, 1984, November 29, 1984, and December 13, 1984.*fn4 He stated that Claimant was able to perform her duties as a waitress during the entire period he saw Claimant.*fn5 Claimant's own physician, Gary L. Smith, M.D., stated by deposition that Claimant remained disabled and was unable to perform her waitressing duties as of the date he last examined her, i.e., mid-October 1984. He stated that he thought that

[ 120 Pa. Commw. Page 323]

    she would eventually recover, although he was unable to opine when she would recover.*fn6 Employer contends that Dr. Tetalman's opinion that Claimant had recovered as of December 13, 1984, was consistent with Dr. Smith's opinion that Claimant would recover, because Dr. Tetalman examined Claimant at a later date than did Dr. Smith. Employer would have had the Referee find that although Claimant was ...


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