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CERTAINTEED CORPORATION AND AETNA CASUALTY & SURETY COMPANY v. WORKMEN'S COMPENSATION APPEAL BOARD (WILLIAMS) (05/26/89)

decided: May 26, 1989.

CERTAINTEED CORPORATION AND AETNA CASUALTY & SURETY COMPANY, PETITIONERS,
v.
WORKMEN'S COMPENSATION APPEAL BOARD (WILLIAMS), RESPONDENTS



PETITION FOR REVIEW

COUNSEL

Daniel K. Deardorff and Martson, Deardorff, Williams & Otto, Carlisle, for petitioners.

Richard W. Rosenblitt and Galfand, Berger, Lurie & March, Philadelphia, for respondent, Paul R. Williams.

Doyle and McGinley, JJ., and Barbieri, Senior Judge.

Author: Doyle

[ 126 Pa. Commw. Page 312]

This is an appeal by Certainteed Corporation (Employer) and Aetna Casualty and Surety Company from an order of the Workmen's Compensation Appeal Board (Board) affirming a referee's decision setting aside the final receipt of Paul R. Williams (Claimant) and reinstating his compensation pursuant to Section 434 of The Pennsylvania Workmen's

[ 126 Pa. Commw. Page 313]

Compensation Act (Act), Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 1001. We affirm.

This case first appeared before this Court in 1985. At that time, the original referee found that Claimant sustained a work-related injury on November 22, 1976. As a result of this injury, Claimant was hospitalized in April 1978. He returned to work at the beginning of November 1978 and on November 6, 1978, executed a final receipt. Claimant returned to duty at his previous or higher wages and continued to work until October 2, 1981, at which point he was furloughed (along with forty-nine other employees) because of poor economic conditions. On October 28, 1981, Claimant filed his petition to set aside the final receipt. While Claimant maintained that upon return to work he was placed on light duty assignment, the witness for Employer testified that upon return to work Claimant had the same job title and substantially the same duties as he had prior to his injury. Claimant's doctor testified that Claimant's condition had neither worsened nor improved. The original referee made no findings on whether the doctor's testimony was credible; he did, however, find credible the testimony of Employer's witness and did not find credible the testimony of Claimant with respect to the job duties Claimant maintained he performed upon return to work. The original referee then dismissed Claimant's petition to set aside the final receipt and the Board affirmed.

On appeal, this Court remanded the case for determination of two specific findings: (1) whether Claimant's expert witness, Dr. Butera, was a credible witness; and (2) whether Dr. Butera presented unequivocal medical evidence that Claimant was, in fact, disabled on the date he signed the final receipt.

On remand, the referee found the testimony of Dr. Butera to be credible, and further found that Claimant had not fully recovered from his injury when he signed the final receipt on November 6, 1978. As a result, the referee entered a suspension of Claimant's benefits effective November 6, 1978, and reinstated Claimant's total disability

[ 126 Pa. Commw. Page 314]

    benefits effective October 2, 1981, the date Claimant was furloughed. The Board affirmed the referee's ...


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