Appeal from the Order of the Workmen's Compensation Appeal Board in case of Ellen Vogel v. Sherman Underwear, No. A-73379.
John R. Lenahan, Jr., with him Lenahan, Dempsey, Murphy & Piazza, for petitioner.
George W. Teets, with him Stephen Jennings, for appellee.
Judges Rogers, DiSalle and MacPhail, sitting as a panel of three. Opinion by Judge MacPhail.
Sherman Underwear (Employer) brings this appeal from a decision of the Workmen's Compensation Appeal Board (Board) affirming a referee's dismissal of a petition filed by Employer to terminate workmen's compensation benefits to Ellen Vogel (Employee). We affirm the Board.
The evidence here showed that Employee is a 69 year old woman who had worked as a seamstress for Employer for 20 years. On April 4, 1974, she suffered a work-related injury to her left ankle. She received compensation benefits until April 16, 1976, when Employer's physician certified that she had recovered from her injury and could return to work as a seamstress. On April 30, 1976, Employer filed a petition to terminate benefits.
The testimony concerning Employee's recovery is equivocal, at best. Employer's physician, Dr. Sgarlat, certified that Employee had "fully recovered from injury." In his testimony, given by way of deposition, he stated that Employee could do a sedentary type of job and that she could work as a sewing machine operator. He also testified, however, that she would only be capable of doing a job which would not be "very demanding."
Dr. Propst, Employee's physician, also testified as to Employee's recovery. While Dr. Propst testified that he thought Employee should try to go back to work and that she could probably operate a sewing machine with her right foot, he did not testify that her disability had been terminated. Specifically, Dr. Propst testified, "Whether she would be able to work or not, I don't know. I think from following her subjectively and the swelling, I would say she would not be able to work adequately."
Finally, Employee testified on her own behalf. She said that she was able to perform work, but that her ankle pained her and that she could not bend it. The referee personally observed the Employee's ankle. Employee testified further that if she were to return to work as a seamstress, the heat from the sewing machine motor would bother her ankle and that she would be unable to make her piece rate. She testified that she called the Employer about returning
to work when her physician told her to do so but was told by the Employer that there was no work. She said if there had been ...