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MAPLE PRESS COMPANY v. COMMONWEALTH PENNSYLVANIA (11/17/80)

decided: November 17, 1980.

MAPLE PRESS COMPANY, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, WORKMEN'S COMPENSATION APPEAL BOARD AND MARIAN ANDERSON, RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in case of Marian Anderson v. Maple Press Company, No. A-74545.

COUNSEL

Sharon F. Harvey, Swartz, Campbell & Detweiler, for petitioner.

Michael J. Brillhart, Griest, Himes, Gettle, Brillhart & Herrold, for respondents.

Judges Craig, MacPhail and Williams, Jr., sitting as a panel of three. Opinion by Judge Craig.

Author: Craig

[ 54 Pa. Commw. Page 550]

In this workmen's compensation appeal, the employer*fn1 questions a dismissal by the board*fn2 of its petition to suspend compensation, affirming a referee's decision reinstating compensation to the claimant.*fn3

Claimant sustained a compensable injury on August 6, 1971 and received total disability benefits for a ruptured disc and unstable lumbar spine. On May 8, 1975, the employer filed a petition for suspension of benefits, alleging that claimant had sufficiently recovered to be able to work as of April 10, 1975 at the position of book repair person, a job different from her previous regular assignment. The referee granted a supersedeas, effective April 10, 1975.

Before the referee, claimant offered the testimony of Dr. Gailey, an orthopedic surgeon who treated claimant for her injury and performed the disc removal and fusion operation. Dr. Gailey testified to the history of claimant's problems following surgery with inflamation of the donor site and pain in the back of the legs, in addition to continued limitations in function due to the back injury. On direct examination, he stated that claimant could do just very light lifting, that bending presented problems, and that sitting or standing "after a half hour" would be "most uncomfortable." As to prognosis, he testified that all procedures had been exhausted and that "what she has is what she will retain."

[ 54 Pa. Commw. Page 551]

When asked about the requirements of the book repair position. Dr. Gailey stated that it was his understanding that it would be full time and could be done either sitting or standing. He said that she could not do the "lifting and twisting" and "keeping up with the production line"; he opined that claimant was not employable in the offered position either in the past or at present.

With reference to Dr. Gailey's cross-examination, employer contends that the doctor testified that claimant could do the book repair job part-time. Fair study reveals that the doctor's opinion was, at best, conditional and not unequivocal. One passage reads:

Q. Now it [the job description] did refer to the opportunity for the woman to either sit or stand at her option?

A. Yes.

Q. With that, would that in your mind indicate it would not be necessary for your patient to sit or stand for one half hour at a clip. She could get up and down to perform the job?

A. That's right.

Q. Is that what you would recommend -- the ability to move around?

A. Yes.

Q. You referred also to the possibility she would have to lie down. Do you really think that in April of 1975 this patient would have had to lie down for a significant ...


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