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BROCKWAY GLASS COMPANY v. COMMONWEALTH PENNSYLVANIA (09/16/77)

decided: September 16, 1977.

BROCKWAY GLASS COMPANY, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, WORKMEN'S COMPENSATION APPEAL BOARD AND ESTHER F. CONFORT, RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in case of Esther Confort v. Brockway Glass Company, No. A-71086.

COUNSEL

Scott H. Fergus, with him Fergus, Martin & Fergus, for appellant.

Janet Moschetta, with her Joseph P. Moschetta, and James N. Diefenderfer, for appellees.

Judges Kramer, Mencer and Rogers, sitting as a panel of three. Judge Kramer did not participate in the decision. Opinion by Judge Mencer. Judge Kramer did not participate in the decision in this case. See Pa. R.a.p. 3102(d).

Author: Mencer

[ 31 Pa. Commw. Page 625]

This appeal has been brought by Brockway Glass Company from an order of the Workmen's Compensation Appeal Board (Board) affirming a decision of the referee in favor of Esther F. Confort (claimant). The referee awarded reinstatement of benefits for total disability in response to a modification petition filed under Section 413 of The Pennsylvania Workmen's Compensation Act*fn1 (Act). Since we agree with the result reached by the referee and the Board, we will affirm.

The claimant's injury occurred in 1967 in the course of her employment with Brockway when a metal marker fell on her right shoulder. In March of 1968, she returned to work after not working for several months. In April of that year, she entered into a compensation agreement with her employer and its insurance carrier, Pennsylvania Manufacturers' Association Insurance Company, and signed a final receipt.

Since April of 1968, two reinstatement petitions have been filed by the claimant, as well as the modification petition. As a result of the reinstatement petition dated October 1968, she was awarded full benefits for the period from July 1, 1968 to February 14, 1970.

[ 31 Pa. Commw. Page 626]

The second reinstatement petition was filed in February 1972. Dr. Sherman, the claimant's doctor, testified at the hearing that she was totally disabled, capable of working at most four hours a day at light work. The referee awarded her full benefits from February 14, 1970 indefinitely into the future. On appeal, the award was vacated and the case was remanded for additional medical evidence. On April 19, 1974, a hearing was held before the referee. On April 23, 1974, the referee filed his decision awarding full benefits from February 14, 1970 to April 18, 1974 and partial benefits thereafter. This award was based on a finding that, as of April 19, work was available to the claimant which she was capable of performing. This work involved 24 hours a week baking and distributing pizza samples to customers in major food chains. No appeal was taken from this decision.

Between April 19, the date of the hearing, and April 23, the date of the referee's decision, something occurred which is the heart of this litigation. On the afternoon of April 22, 1974, the claimant was hospitalized. For two and a half weeks, she remained in the hospital due to severe neck pain radiating into her right arm and hand.

In June of 1974, the modification petition was filed. At the hearing before the referee, the claimant testified that several times a day after her discharge from the hospital she used a home-traction unit and applied heat to the affected area. She also testified that her condition was becoming worse, as evidenced by her inability to fully dress herself, the necessity of sleeping on her back, which was the least painful ...


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