Appeal from the Order of the Workmen's Compensation Appeal Board in the case of Marilyn J. Mickles v. Oscar Mayer & Company, No. A-77673.
Thomas F. McDevitt, for petitioner.
William R. Hourican, of counsel, Morgan, Lewis & Bockius, for respondent, Oscar Mayer & Company.
Judges Blatt, MacPhail and Williams, Jr., sitting as a panel of three. Opinion by Judge Williams, Jr. Judge Wilkinson, Jr. did not participate in the decision in this case.
[ 59 Pa. Commw. Page 110]
This is an appeal by Marilyn Mickles (claimant) from an order of the Workmen's Compensation Appeal Board (Board) which suspended her workmen's compensation benefits.
Claimant, Marilyn Mickles, was last employed by Oscar Mayer and Company (Oscar Mayer) as a pork sausage scaler. On November 17, 1972, while in the course of her employment, claimant slipped and fell on a wet floor, causing her to sustain injuries to her neck and back. Thereafter, claimant and her employer, Oscar Mayer, entered into a compensation agreement whereby claimant was paid benefits in the amount of ninety-four dollars per week. In the succeeding months, claimant returned to work on several occasions, but alleged that continual pain prevented her from permanently resuming her employment.
Subsequent to claimant's attempted resumption of work, Oscar Mayer filed a petition for termination of
[ 59 Pa. Commw. Page 111]
benefits effective as of September 12, 1973. The petition was filed pursuant to a medical report issued by claimant's physician, Dr. Steinberg, stating that claimant had recovered from her disability and was fit to return to work. Following eight hearings, the referee entered a decision granting Oscar Mayer's petition. Claimant appealed that decision to the Board which remanded the case to the referee for clarification of the findings of fact and conclusions of law. A second decision was handed down by the referee, once again granting Oscar Mayer's petition to terminate claimant's benefits. That determination contained extensive findings of fact detailing the testimony presented at the hearing. The evidence, the referee found, established that the claimant was capable of returning to work without a loss of earnings and thus she should not continue to receive disability benefits. An appeal was again taken to the Board which affirmed the referee's decision with one modification; the claimant's benefits were ordered suspended, rather than terminated, as of September 12, 1973. The Board concluded that the evidence demonstrated that some disability still did exist in claimant. It further concluded, however, that claimant's employer had established the availability of work which claimant could perform, without a loss of earnings, despite her physical condition. It is from the Board's suspension order that the claimant now appeals.
Claimant advances three arguments in her attempt to persuade this Court to overrule the Board's determination. First, claimant contends that her employer has not sustained its burden of proving that her disability has ceased or that she is able to return to work at a reduced capacity without a loss of earnings. In this regard, claimant alleges that a great portion of the pain from which she suffers is caused by a psychological overlay. She asserts that the medical evidence
[ 59 Pa. Commw. Page 112]
offered by Oscar Mayer in support of its petition does not disprove the existence of ...