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ZELMA T. GILROY v. COMMONWEALTH PENNSYLVANIA (10/06/77)

decided: October 6, 1977.

ZELMA T. GILROY, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, WORKMEN'S COMPENSATION APPEAL BOARD AND HOLY SPIRIT HOSPITAL, RESPONDENTS. HOLY SPIRIT HOSPITAL, PETITIONER V. COMMONWEALTH OF PENNSYLVANIA, WORKMEN'S COMPENSATION APPEAL BOARD AND ZELMA T. GILROY, RESPONDENTS



Appeals from the Order of the Workmen's Compensation Appeal Board in case of Zelma T. Gilroy v. Holy Spirit Hospital, No. A-71312.

COUNSEL

Ronald M. Katzman, with him Goldberg, Evans & Katzman, for Gilroy.

Mark E. Garber, Jr., with him Garber, Fowler & Addams, for Holy Spirit Hospital.

Judges Crumlish, Jr., Wilkinson, Jr. and Rogers, sitting as a panel of three. Opinion by Judge Rogers.

Author: Rogers

[ 32 Pa. Commw. Page 153]

While employed as a cleaning woman for the Holy Spirit Hospital (employer), Zelma T. Gilroy, claimant, suffered an injury compensable under The Pennsylvania Workmen's Compensation Act.*fn1 She received compensation of $56.59 per week from about October 18, 1973. On June 28, 1974, claimant's employer filed a Petition for Termination or Modification of Agreement of Award. After hearing, the referee made the following findings of fact:

4. Defendant has filed a petition for modification, averring claimant still suffers from residual disability but is able to return to work at her previous occupation as of 6-21-74.

5. The medical evidence presented [by the employer] consists of a physician's affidavit form (there is no notary's jurat affixed to the form), as well as the testimony of two doctors. The medical evidence is far from clear and definitive; however, the strain of consistency of [the employer's] medical evidence is to the effect that claimant was able to return to her pre-injury occupation in spite of the residual disability as of 6-21-74. Also consistent in the medical testimony is that the headaches which are the only residual disability this claimant presently suffers originate in tension, possibly caused by the original injury or possibly arising out of other etiology.

The referee suspended all benefits to claimant effective June 21, 1974 on the strength of these findings.

On appeal by the claimant, the Workmen's Compensation Appeal Board (Board) vacated the referee's order and remanded to the referee for clarification of the extent of claimant's "residual" disability and

[ 32 Pa. Commw. Page 154]

    of the availability of suitable employment in light of such disability. The Board noted that:

The Referee has prudently restricted his Order to a suspension of compensation, in view of his finding conceding 'residual' disability. This implies the existence of partial disability which, should it involve loss of earning power, would make her eligible for compensation. But also, unless her former job is open to her, it brings into play the question of availability of work. Unfortunately, the record in this case contains no evidence ...


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