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RUSSELL W. SEILHAMER v. WORKMEN'S COMPENSATION APPEAL BOARD (BERWIND RAILWAY SERVICE COMPANY) (12/29/88)

decided: December 29, 1988.

RUSSELL W. SEILHAMER, PETITIONER
v.
WORKMEN'S COMPENSATION APPEAL BOARD (BERWIND RAILWAY SERVICE COMPANY), RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board, in the case of Russell W. Seilhamer v. Berwind Railway Service Company, No. A-92085.

COUNSEL

Stephen D. Wicks, for petitioner.

James S. Routch, Evey, Routch, Black, Dorezas, Magee & Andrews, for respondent, Berwind Railway Service Company.

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

Author: Mcginley

[ 122 Pa. Commw. Page 411]

Russell W. Seilhamer (Seilhamer) appeals from a decision of the Workmen's Compensation Appeal Board (Board) affirming a decision of the Referee to suspend Workmen's Compensation Benefits pursuant to Section 413 of The Pennsylvania Workmen's Compensation Act (Act),*fn1 77 P.S. ยง 772. We affirm.

Seilhamer was employed by Berwind Railway Service Company (Employer) as a car repairman on May 11, 1982, when he suffered a work-related fracture of

[ 122 Pa. Commw. Page 412]

    the right hand. As a result of the injury, Seilhamer began receiving benefits pursuant to a Notice of Compensation Payable. On March 17, 1983, the Employer filed a Petition for Termination. The Referee considered the Petition as a Petition for Suspension and suspended Seilhamer's benefits. The Board affirmed the Referee's decision and Seilhamer brought the instant appeal.

Where there has been evidence presented by both parties 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. Kirkwood v. Unemployment Compensation Board of Review, 106 Pa. Commonwealth Ct. 92, 525 A.2d 841 (1987).

Seilhamer contends that the Board erred in concluding that the Referee's decision that he could return to his previous position was based on substantial evidence.

In a proceeding to suspend or terminate workmen's compensation benefits, an employer has the burden of showing that the employee's disability has ended or been reduced and that the employee is capable of returning to work. Carmen Paliotta General Construction v. Workmen's Compensation Appeal Board (Tribuzio), 107 Pa. Commonwealth Ct. 143, 528 A.2d 274 (1987). Thus, the issue is whether the testimony of the Employer's medical witnesses was unequivocal and constitutes ...


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