DocketNumber: Appeal, No. 1649 C.D. 1977
Judges: Craig, Crtjmlish, Crumlish, Rogers
Filed Date: 12/5/1978
Status: Precedential
Modified Date: 10/18/2024
Opinion by
Paul George (Claimant) appeals a decision of the Workmen’s Compensation Appeal Board (Board) which reversed the referee’s award of benefits to Claimant pursuant to Section 301(a) of The Pennsylvania Workmen’s Compensation Act (Act), Act of June 2,1915, P.L. 736, as amended, 77 P.S. §431.
We reverse.
Claimant was employed as an oil burner repairman/serviceman by the Comfort Wholesale Heating and Supply Company (Employer). On February 13, 1974, while in the course of his employment, he sustained injuries to his right hand, left shoulder, pelvis and lower back. A compensation agreement was executed on March 4, 1974, whereby Employer agreed to pay him total disability benefits. Following Claimant’s back injury, a laminectomy operation to remove a protruded lumbar disc was performed on July 10, 1974.
On appeal, the Board, without taking additional evidence, reversed the referee, 'finding that he disregarded competent evidence and made conclusions of law which were not sustained by the record.
Claimant now comes to us and argues that since the Board took no additional evidence, and the referee is the ultimate finder of fact and the final arbiter of questions of credibility, and since there is substantial evidence to support the referee’s conclusion, it erred in reversing the referee’s decision.
We agree.
At the referee’s hearing, Claimant’s physician testified that Claimant had made an excellent recovery from his operation and that he was satisfied that Claimant could return to the labor market noting a caveat against strenuous lifting. He testified that his
Claimant testified that on at least two occasions during visits to his doctor he complained of pains in his back and of the loss of sensation in his left leg, but that he was told by the doctor that his continuing discomfort could not be arrested.
It has been settled without question that the referee is the judge of credibility and, absent receipt of additional evidence, the Board may not alter the referee’s findings of fact. Universal Cyclops Steel Corp. v. Krawcsynski, 9 Pa. Commonwealth Ct. 176, 305 A.2d 757 (1973). Thus, it is within the exclusive province of of the referee to find whether Claimant’s testimony is more persuasive than his treating physician’s.
In an effort to meet its burden of proving the availability of work,
Accordingly, we
Order
And Now, this 5th day of December, 1978, the order of the Workmen’s Compensation Appeal Board is reversed and it is ordered that compensation payments recommence to Claimant, Paul George, for total disability at the rate of $106.00 per week from April 16, 1975 and continuing until such time as they may expire under the provisions of the Act, as amended.
The above award is to bear interest payable at ten percent (10%) per annum on all deferred payments of compensation from the date due to the date paid in accordance with the provisions of the Act.
Relevant portions of the deleted findings of fact are as follows:
4. ... [T]he Referee is not satisfied that Defendant has carried its burden of proving that Claimant is in a condition to perform even light work. .. .
6. Defendant has failed to sustain its burden of proving that there are jobs available to this medically partially disabled claimant. . . .
Employer has the burden of showing that the disability has ended or has been reduced and that (1) work is available to the claimant and (2) claimant is capable of doing such work. See Workmen’s Compensation Appeal Board v. Pennsylvania School Boards Association, 28 Pa. Commonwealth Ct. 618, 369 A.2d 503 (1977).