Appeal from the Order of the Workmen's Compensation Appeal Board in case of Juan Lopez v. Interstate Container Corp., No. A-75871.
Leon Ehrlich, Ehrlich & Ehrlich, for petitioner.
Martin J. Fallon, Jr., Swartz, Campbell & Detweiler, for respondent.
Judges Wilkinson, Jr., MacPhail and Williams, Jr., sitting as a panel of three. Opinion by Judge Williams, Jr.
[ 54 Pa. Commw. Page 473]
This is an appeal from an order of the Workmen's Compensation Appeal Board affirming a referee's decision to modify the Workmen's Compensation award of Juan Lopez (claimant) from benefits for total disability to partial.
The claimant sustained a back injury on October 2, 1974, in the course of his employment as a "bundler" with the Interstate Container Corporation (employer). His claim for compensation benefits resulted in an award for total disability at the rate of $106 per week commencing from the date of the injury.
On January 13, 1977, the employer filed a petition for modification and request for supersedeas alleging that as of September 3, 1976, the claimant's disability had decreased to 20% partial disability. Following a supersedeas hearing the referee ordered a decrease in benefits to a rate for partial disability, effective February 16, 1977, pending final determination of the modification petition. A series of hearings on the petition followed.
In support of the petition, the employer presented the testimony of Dr. E. James Morrissey, Jr., an orthopedic surgeon who had first seen the claimant in a hospital emergency room on the date of the injury. The physician's treatment of the injury included the performance of a laminectomy in December of 1974 and two myelograms, one in 1974 and one in 1976. The doctor testified that it was his opinion that the claimant could perform light work and that his disability
[ 54 Pa. Commw. Page 474]
had decreased to 20% as of April, 1976. It was his opinion that the claimant's partial disability prevented him from lifting more than 30 pounds or getting into an extreme position; that the claimant should have the freedom to sit or stand as he requires, but should not stand more than 2 hours at a time or drive more than 45 minutes.
The employer also introduced the testimony of a vocational rehabilitation specialist who had interviewed the claimant in April of 1976 and thereafter began to search for available positions. The specialist initially testified that he found nine positions in the local job market that he believed were compatible with the claimant's physical limitations as well as his educational background and vocational experience. Following testimony by Dr. Morrissey, the specialist revised his opinion and concluded that there were seven available positions that the claimant could perform within the restrictions imposed by the physician.
The referee found that the employer proved available positions within the claimant's restrictions. These positions included that of a security guard at the Pinkerton Detective Agency, available as of July 19, 1976; a guard at the Burns Security System; a cashier attendant position at a Gulf Oil gas station, both of which were available as of February 16, 1977; and a cashier for a Mobil self-service station, available as of January, 1978. The referee concluded that the claimant was entitled to compensation for partial ...