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ROBIN S. MITCHELL v. WORKMEN'S COMPENSATION APPEAL BOARD (NEAL TREE SERVICE) (10/25/89)

decided: October 25, 1989.

ROBIN S. MITCHELL, PETITIONER,
v.
WORKMEN'S COMPENSATION APPEAL BOARD (NEAL TREE SERVICE), RESPONDENTS



PETITION FOR REVIEW, (WORKMEN'S COMPENSATION).

COUNSEL

John G. Achille, Brookville, for petitioner.

Michael J. Wagner, David P. Andrew Evey, Routch, Black, Dorezas, Magee & Andrews, Altoona, for respondents.

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

Author: Mcginley

[ 129 Pa. Commw. Page 262]

Robin S. Mitchell (Claimant) appeals from an order of the Workmen's Compensation Appeal Board (Board) denying Claimant's petition for rehearing.

Claimant, while an employee of Neal Tree Service (Employer), suffered a work-related injury, described as a "sacroiliac sprain" on October 18, 1982. On December 13, 1982, a notice of compensation payable was filed and Claimant received benefits for total disability from October 18, 1982, through November 21, 1982. Claimant returned to work on November 22, 1982, and signed a final receipt on December 10, 1982.

Pursuant to a subsequent supplemental agreement dated April 20, 1983, Claimant was again paid total disability benefits. On January 9, 1985, Employer filed petitions for termination and supersedeas alleging that Claimant's disability had ceased and that he was capable of returning to work as of November 8, 1984. After a hearing at which Claimant appeared, a supersedeas was entered effective February 26, 1985.

On May 15, 1985, a hearing was held before the referee on Employer's petition for termination. The referee delayed the hearing for a half hour, but Claimant did not appear. Employer presented the medical testimony of Stanley R. Askin, M.D. (Dr. Askin). Dr. Askin testified that Claimant had suffered a lumbrosacral strain on October 18, 1982, but after examining Claimant on November 8, 1984, he found that Claimant was fully recovered. Based on Dr. Askin's testimony that Claimant was no longer disabled as of November 8, 1984, the referee rendered a June 11, 1985, decision terminating Claimant's benefits. Claimant appealed to the Board which affirmed the referee on June 5, 1987.

On September 29, 1988, Claimant petitioned for rehearing alleging that he was unable to obtain counsel to represent him in the termination proceeding. Claimant contends that he would succeed on the merits if given the opportunity to present medical evidence including a physician's opinion

[ 129 Pa. Commw. Page 263]

    that, based upon review of a 1983 CT-scan, Claimant suffers from a ruptured disc at the L4-5 level of Claimant's spinal column.

The Board denied Claimant's petition for rehearing and reiterated that the referee's decision was based upon substantial, competent evidence. The Board also noted that there is no provision under The Pennsylvania Workmen's Compensation Act*fn1 which ...


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