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CHAMBERLAIN MANUFACTURING CORP. v. COMMONWEALTH PENNSYLVANIA (09/27/79)

decided: September 27, 1979.

CHAMBERLAIN MANUFACTURING CORP., PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, WORKMEN'S COMPENSATION APPEAL BOARD AND CARL WOLTER, RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in case of Carl Wolter v. Chamberlain Manufacturing Corp., No. A-72846.

COUNSEL

Joseph E. Gallagher, with him, of counsel, O'Malley, Bour & Gallagher, for petitioner.

Francis W. Roscoe, II, with him, of counsel, William Zaharellis, and Zacharellis & Tellie, for respondent.

Judges Crumlish, Jr., Blatt and DiSalle, sitting as a panel of three. Opinion by Judge DiSalle.

Author: Disalle

[ 46 Pa. Commw. Page 226]

In this termination proceeding arising under The Pennsylvania Workmen's Compensation Act (Act), Act of June 2, 1915, P.L. 736, as amended, 77 P.S. ยง 1

[ 46 Pa. Commw. Page 227]

    et seq., Chamberlain Manufacturing Corporation (Employer), seeks review of an order of the Workmen's Compensation Appeal Board (Board) affirming the referee's dismissal of Employer's termination petition and awarding compensation benefits to Carl Wolter (Claimant) based upon partial loss of earning power. We affirm.

Claimant, while employed by Employer as a foreman, suffered disabling head injuries on October 26 and 31, 1972. Following hospitalization and a cervical fusion, he returned to work on January 18, 1973, having received total disability payments from the date of the injury until his return. Four days later, he was laid off as a foreman and rehired as a security guard, earning substantially less. Claimant again became totally disabled on March 11, 1973, and received compensation from that date until May 13, 1973, when he returned to work as a security guard. Employer promptly filed a petition to terminate, alleging that Claimant had returned to work with no loss of earning power. Whether Claimant did in fact suffer a loss of earning power is the issue presently confronting us.

At some point in time subsequent to the accident, Petitioner developed an anxiety-related stammering problem that persists to the present day. The referee found that this speech impediment was causally related to the original injury and rendered Claimant unable to effectively perform his tasks as foreman. Employer challenges the following findings of fact made by the referee as they relate to Claimant's disability.

2. . . . The injuries aggravated an underlying cervical disc as a result of which a cervical fusion was performed by Wr. William A. Black in November of 1972. Further as a result of the injuries and hospitalization for a fusion,

[ 46 Pa. Commw. Page 228]

    the claimant developed an anxiety neurosis which affected the claimant's speech. The claimant has a great deal of stammering and hesitation when expressing himself, all of which is causally related to the accident and injury while in the course of employment for the defendant on October 26, 1972.

8. . . . As a result of the injury the claimant was totally disabled from November 7, 1972 to January 17, 1973, inclusive. On January 18, 1973 the claimant returned to work in the capacity of a supervising foreman with the same duties as at the time of the injury. The claimant had great difficulty in performing this job due to the severe speech impediment, specifically severe stammering which hindered him in effectively communicating with the workers under his supervision, giving directions, orders and instructions regarding the work to be performed.

In addition, the claimant still had pain in the neck area which restricted his movements, dizziness at times and pain in the left knee when he would walk. The claimant was advised by his immediate supervisor that after January 20th, he would no longer be performing his job as foreman in his department and offered the claimant a position as a security guard or be layed off from work. The claimant accepted the position of a security guard effective January 21, 1973 at an hourly rate of $2.90 which resulted in a loss of earnings. The defendant employer replaced the ...


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