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PENNWALT v. COMMONWEALTH PENNSYLVANIA (07/06/79)

decided: July 6, 1979.

PENNWALT, STOKES DIVISION, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, WORKMEN'S COMPENSATION APPEAL BOARD AND KRIKOR MAHSEREJIAN, RESPONDENTS. KRIKOR MAHSEREJIAN, PETITIONER V. COMMONWEALTH OF PENNSYLVANIA, WORKMEN'S COMPENSATION APPEAL BOARD AND PENNWALT, STOKES DIVISION, RESPONDENTS



Appeals from the Order of the Workmen's Compensation Appeal Board in case of Krikor Mehserejian v. Pennwalt, Stokes Division, No. A-74252.

COUNSEL

Lowell A. Reed, Jr., with him Peter J. Weber, and Rawle & Henderson, for Pennwalt, Stokes Division.

Marc S. Jacobs, with him Galfand, Berger, Senesky, Lurie and March, for Krikor Mahserejian.

Judges Mencer, Rogers and Craig, sitting as a panel of three. Opinion by Judge Mencer.

Author: Mencer

[ 44 Pa. Commw. Page 99]

Pennwalt, Stokes Division (employer) has appealed from an order of the Workmen's Compensation Appeal Board (Board) dismissing a petition to terminate or modify compensation payable to Krikor Mahserejian (claimant). We affirm.

On September 4, 1974, claimant suffered a compensable injury to his back which was diagnosed as acute lumbar strain with a herniated disc. The employer voluntarily began making workmen's compensation payments for total disability on September 27, 1974, pursuant to a "notice of compensation payable." On February 11, 1975, surgery was performed to remove the herniated disc. Claimant's physician, Dr. Marvin Kallish, regarded claimant's recovery as good. However, claimant continued to complain about pain in his lower back and legs. Dr. Kallish could discover no anatomical or objective reasons for the pain which claimant reported.

In September 1975, claimant was admitted to the hospital for one week for evaluation by Dr. Jon C.

[ 44 Pa. Commw. Page 100]

Sarnecki, an orthopedic surgeon. Like Dr. Kallish, Dr. Sarnecki was unable to discover any objective basis for the pain claimant was reporting. Dr. Sarnecki advised claimant to return to his former job on a part-time basis and to gradually work into a full 40-hour work week. Dr. Sarnecki did not place any other restrictions on the type of work claimant was permitted to do.

In late October 1975, Dr. Kallish similarly advised claimant to return to work on a part-time basis but to avoid heavy lifting. The employer made available to the claimant a modified version of claimant's original position as an "assembler" of equipment which would involve no heavy lifting. Claimant reported to begin work in this position, but he left after three hours and did not return thereafter.*fn1

On November 10, 1975, the employer filed a petition for termination or modification of the compensation being paid to claimant. In support of the petition, the employer presented the testimony of the employer's chief of the personnel department, Mr. James J. Hughes. Mr. Hughes testified that three jobs were presently available to claimant: (1) his old job as an assembler, (2) the modified assembler job which involved no heavy lifting, and (3) a job as "tool crib attendant." The latter position involved sitting behind a desk and dispensing tools, weighing 4 pounds or less, to other workers. Some bending or ...


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