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LESTER E. EVANS v. WORKMEN'S COMPENSATION APPEAL BOARD ( DEITCH COMPANY) (11/30/88)

decided: November 30, 1988.

LESTER E. EVANS, PETITIONER
v.
WORKMEN'S COMPENSATION APPEAL BOARD (THE DEITCH COMPANY), RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in the case of Lester E. Evans v. The Deitch Company, No. A-91719.

COUNSEL

Thomas P. Geer, for petitioner.

Eugene F. Scanlon, Jr., with him, Dion G. Rassias, Dickie, McCamey & Chilcote, P.C., for respondent, The Deitch Company.

Judges Doyle and McGinley, and Senior Judge Kalish, sitting as a panel of three. Opinion by Judge McGinley. Judge MacPhail did not participate in the decision in this case.

Author: Mcginley

[ 121 Pa. Commw. Page 365]

Lester E. Evans (Evans) appeals an order of the Workmen's Compensation Appeal Board (Board) affirming the decision of a Referee that The Deitch Company (Employer) presented sufficient evidence to show that Evans' disability as a result of an October 7, 1977, accident had terminated.

Employer filed a termination petition on April 18, 1984, declaring that Evans had recovered from the injuries sustained in an accident which occurred in the

[ 121 Pa. Commw. Page 366]

    course of his employment on October 7, 1977. While Evans was performing his job as a "burner" he fell and struck his chest. He was disabled and a Notice of Compensation Payable was filed. A Final Receipt was executed on October 25, 1977, indicating that Evans returned to work on October 25, 1977. In a prior proceeding, Referee Ortale set aside this Final Receipt on December 5, 1980, and reinstated compensation for total disability as of January 12, 1978. The Board on June 17, 1982, affirmed Referee Ortale's decision. Referee Ortale had found that Evans ". . . suffers from depression, anxiety, and some delusion which prevent him from returning to work (p. 9). The injury of October 7, 1977, aggravated the Claimant's existing depressive and paranoid state, causing him to become more nervous, more depressed and thus affecting his thinking and concentration (p. 17)." (Referee's Decision, Finding of Fact No. 9, December 5, 1980.) Referee Ortale also found the testimony of Dr. Rau, the treating physician, more credible and convincing than the testimony of Employer's medical expert, Dr. David Spence, who examined Evans on only one occasion. (Referee's Decision, Finding of Fact No. 11, December 5, 1980.)

Employer has presently alleged in its termination petition that Evans has successfully recovered from his injuries. Employer also requested a supersedeas. Following a hearing before Referee Fahey on April 14, 1984, that supersedeas request was denied. At a second hearing before Referee Henry W. Willson, on October 10, 1985, the parties stipulated that the evidence submitted on the earlier case decided in favor of Evans could be used as background information by Referee Willson. (Referee's Decision, Finding of Fact No. 3, May 12, 1986, and Notes of Testimony, October 10, 1985, (N.T.) at 4.) At the second hearing Dr. Rau again testified on behalf of Evans and the Employer submitted the

[ 121 Pa. Commw. Page 367]

    deposition testimony of Howard B. Finkelhor, M.D., a Board physician certified in both neurology and psychiatry. Dr. Finkelhor's testimony was the same as Dr. Spence's testimony, which was rejected by Referee Ortale in the 1980 decision. Dr. Finkelhor diagnosed Evans as suffering from a schizophrenic disorder and, furthermore, that this condition currently was neither caused by nor aggravated by the original work injury sustained on October 7, 1977. (Deposition of Howard B. Finkelhor, M.D., June 19, 1984, (Deposition I), at 8 and 21.) Dr. Finkelhor stated that Evans cannot return to work because of reasons unrelated to the accident which occurred on October 7, 1977.*fn1 (Deposition I at 35.)

Referee Willson accepted the opinion of Dr. Finkelhor and terminated benefits.*fn2 The Board affirmed and held that it was not error to accept the ...


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