Appeal from the Order of the Workmen's Compensation Appeal Board in case of Jeffrey M. Hensch v. K-Mart Corporation, No. A-77472.
Michael J. Seymour, Feczko and Seymour, for petitioner.
Edmond B. Smith, Jr., Markus, Riethmuller and Smith, for respondent, Jeffrey M. Hensch.
Judges Mencer, Rogers and Williams, Jr., sitting as a panel of three. Opinion by Judge Rogers.
[ 55 Pa. Commw. Page 498]
Jeffrey M. Hensch, an auto mechanic employed by K-Mart Corporation (K-Mart), a self-insured employer, injured his back at work on October 5, 1977 while unloading a case of oil from a truck. As a result of the injury the claimant suffered pain in his back and his right leg. Mr. Hensch saw a physician, Dr. George Gilmore, throughout November and December of 1977. Dr. Gilmore diagnosed the claimant as having a herniated nucleus pulposor, L5-S1 and advised the claimant not to go back to work for the time being. Mr. Hensch, whose weekly salary at K-Mart was $215.00, began receiving total disability payments of $145.00 per week on November 13, 1977 under Section 306(a) of The Pennsylvania Workmen's Compensation Act (the Act), Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 511.
In January 1978, when the claimant continued to be in pain, Dr. Gilmore recommended a myelogram. On January 9, 1978 a myelogram was performed after which the claimant had a laminectomy and discectomy at L5-S1 on the right side. After the operation, Mr. Hensch continued to see Dr. Gilmore for treatment.
[ 55 Pa. Commw. Page 499]
At that time Dr. Gilmore recommended to the claimant that he go to the Bureau of Vocational Rehabilitation and get job retraining in order to obtain a job that would not require the heavy lifting involved in his auto mechanic job. The claimant saw a job counselor in February 1978 after he got out of the hospital. He took a state job aptitude test in the summer of 1978. However, he was unable to begin training school as planned because K-Mart filed a termination petition and request for supersedeas which resulted in the termination of Mr. Hensch's benefits on November 13, 1978 when the supersedeas was granted. Mr. Hensch was told at the school that he could not begin training until he was again receiving workmen's compensation benefits.
At the referee's hearing, Dr. Gilmore and a physician testifying for the employer gave evidence dealing with the claimant's physical condition. Both testified that as a result of the operation Mr. Hensch was experiencing normal mobility and no pain but that he should not lift objects heavier than twenty or thirty pounds. The employer's physician stated that the claimant was completely recovered and could return to his auto mechanic job so long as he lifted heavy objects in a manner he described calculated to avoid back strain. Dr. Gilmore testified that a back which has been operated on rarely ever fully recovers and that if the claimant returned to his auto mechanic job in which he must lift objects weighing fifty to seventy pounds every day, he would almost certainly have a recurrence of his back injury. The employer presented no evidence that other work was available to the claimant which he was able to perform.
The referee reinstated compensation for total disability by specifically finding as a fact that Dr. Gilmore's testimony was more credible than that of the
[ 55 Pa. Commw. Page 500]
employer's doctor. On appeal the Workmen's Compensation Appeal Board (Board) ...