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07/30/97 RUSSELL AUSBURN v. WORKERS' COMPENSATION

July 30, 1997

RUSSELL AUSBURN, PETITIONER
v.
WORKERS' COMPENSATION APPEAL BOARD (MERRELL & GARAGUSO), RESPONDENT



Appealed From No. A95-1912. State Agency Workers' Compensation Appeal Board.

Before: Honorable Doris A. Smith, Judge, Honorable James R. Kelley, Judge, Honorable Charles P. Mirarchi, Jr., Senior Judge. Opinion BY Judge Kelley. Judge Smith joins on affirmance of board and Dissents as to counsel fees. Judge Leadbetter did not participate in the decision in this case.

The opinion of the court was delivered by: Kelley

OPINION BY JUDGE KELLEY

FILED: July 30, 1997

Russell Ausburn (claimant) appeals from an order of the Workers' Compensation Appeal Board affirming the decision of a workers' compensation Judge (WCJ) dismissing his claim petition for benefits under the Pennsylvania Workers' Compensation Act (Act). *fn1 We affirm.

The facts of this case may be summarized as follows. On June 17, 1988, claimant injured his left foot and ankle while in the course of his employment as a carpenter for Merrell and Garaguso (employer). As a result of this injury, claimant received workers' compensation benefits under New Jersey law; however, on January 22, 1989, these benefits were terminated.

On or about August 15, 1989, claimant filed a claim petition for benefits under the Pennsylvania Act, alleging disability based on the work-related injury. Employer filed a timely answer denying all material allegations in the claim petition, and hearings were conducted before a WCJ.

After considering the evidence presented by the parties, the WCJ found as fact: (1) on June 17, 1988 claimant injured his left foot and ankle while working for employer; (2) on August 13, 1988, claimant was involved in a criminal assault and he admitted that he had entered the victim's home while in his bare feet and punched the victim three times; (3) on August 22, 1988, claimant was seen by Dr. Thomas Javian and failed to inform Dr. Javian of the assault; and (4) a private investigator hired by employer observed claimant employed as a limousine driver while he was purportedly disabled. Specifically, the WCJ rejected claimant's testimony regarding claimant's disability as not credible, and rejected Dr. Javian's testimony regarding his disability as not credible as it was based in part on the history which was provided by claimant. As a result, the WCJ determined that claimant had failed to prove by substantial competent evidence that he was disabled because of his work-related injury.

Claimant appealed the WCJ's decision to the board. On September 1, 1993, the board issued an order and opinion affirming the WCJ's decision.

Claimant then filed an appeal of the board's decision in this court. On May 24, 1994, this court issued an order and opinion vacating the board's order and remanding the case to the board for remand to the WCJ. Ausburn v. Workmen's Compensation Appeal Board (Merrell & Garaguso) ( No. 2247 C.D. 1993, filed May 24, 1994). This court determined, inter alia, that the evidence relating to the assault committed by claimant was inadmissible in the proceedings. Because the WCJ may have based his credibility determinations on this inadmissible and highly prejudicial evidence, the case was remanded so that the WCJ could reconsider the credibility of the witnesses in the absence of this evidence.

After remand, on April 12, 1995, the WCJ issued another decision denying claimant's petition for benefits. The WCJ made the following relevant findings of fact:

1. On June 17, 1988, the Claimant was employed as a carpenter for [employer].

2. On that date he injured his left foot and left ankle at work.

3. Claimant testified on July 13, 1990, that he continues to feel pain in his left ankle, to the extent that he cannot walk for even one hour without pain. He also testified that ...


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