Appeal from the order of the Workmen's Compensation Appeal Board in the case of Bill J. Christopher v. Dravo Corporation, No. A-91231.
George Stipanovich, with him, Bernadette L. Puzzuole, Strassburger, McKenna, Gutnick & Potter, for petitioner.
Mary Ann Czajkowski, with her, Terry L. Bashline, Baginski and Bashline, for respondent.
Judges Barry and Smith, and Senior Judge Narick, sitting as a panel of three. Opinion by Judge Smith. Judge MacPhail did not participate in the decision in this case. Concurring Opinion by Judge Barry.
[ 124 Pa. Commw. Page 563]
Bill J. Christopher (Claimant) appeals from the order of the Workmen's Compensation Appeal Board (Board) which affirmed the referee's decision denying Claimant's reinstatement petition under The Pennsylvania Workmen's Compensation Act.*fn1 Questions presented for review are whether the referee and Board erred in considering evidence based upon a medical examination conducted five days prior to suspension of Claimant's benefits; whether the referee and Board erred in determining that Claimant failed to sustain his burden of proving a continuing disability; and whether the burden of proof shifted to Dravo Corporation (Employer) to establish the
[ 124 Pa. Commw. Page 564]
availability of work within Claimant's alleged physical limitations. The decision of the Board is affirmed.
Claimant, a mining sales engineer, sustained a work-related injury to his right arm on June 8, 1981 for which Claimant received compensation benefits from March 15, 1982 to September 6, 1982 when the parties executed a supplemental agreement suspending benefits. Claimant was subsequently laid-off but obtained a position as a territory sales person for R.J. Stern Co., Inc. from July 5, 1983 until his discharge on May 15, 1984. In the interim, Claimant filed a claim petition, which was later amended to a reinstatement petition, alleging that his work-related injury resolved into a permanent partial disability with loss of earning power.
Both parties presented evidence at several hearings held before the referee who accepted as credible evidence presented by Employer which included the medical report of Dr. Heywood A. Haser. Dr. Haser last examined Claimant on September 1, 1982 and concluded that Claimant was able to perform his position as a sales engineer. Defendant's Exhibit No. A, p. 2. Also accepted was the telephone deposition testimony of William G. Jones, Claimant's supervisor at R.J. Stern Co., Inc., who testified that Claimant was discharged in May 1984 for non-performance, bad attitude, and problems with expenses, and not as a result of physical complaints or inability to physically perform his work. William G. Jones' October 2, 1984 Telephone Deposition, pp. 2-5.
Further testimony which was accepted in part by the referee was that of Fritz A. Zuhl, Employer's general sales manager. Mr. Zuhl testified that as a sales engineer Claimant would not be required to perform heavy lifting. N.T., September 17, 1984 Hearing, pp. 3, 5, 7-10, 13-15. The referee concluded that Claimant failed to sustain his burden of establishing an increase or recurrence of his
[ 124 Pa. Commw. Page 565]
disability or that his discharge from and lower earnings at R.J. Stern Co., Inc. resulted from Claimant's June 8, 1981 work-related injury; and that Claimant failed to present any medical evidence that he was unable to ...