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BUTTONWOOD FARMS v. COMMONWEALTH PENNSYLVANIA (07/07/81)

decided: July 7, 1981.

BUTTONWOOD FARMS, T/A DELTA SCHOOL, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, WORKMEN'S COMPENSATION APPEAL BOARD AND GLORIA LOREEN SWARTZ, RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in case of Gloria Loreen Swartz v. Buttonwood Farms, t/a Delta School, No. A-78390.

COUNSEL

Ronald F. Bove, Swartz, Campbell and Detweiler, for petitioner.

Patrice Ann Toland, with her, Albert E. Hart, Jr., and James M. Marsh, for respondent, Gloria Loreen Swartz.

Judges Rogers, Blatt and Palladino, sitting as a panel of three. Opinion by Judge Rogers.

Author: Rogers

[ 60 Pa. Commw. Page 358]

Buttonwood Farms, trading as Delta School, has appealed from an order of the Workmen's Compensation Appeal Board affirming the decision of a referee dismissing its petition for termination of workmen's compensation benefits to Gloria Loreen Swartz. We affirm the order below.

On May 15, 1975, Ms. Swartz suffered an injury to her right thigh and leg during the course of her employment. Workmen's compensation benefits were paid by Buttonwood Farms under a notice of compensation payable. In September, 1977, Buttonwood Farms stopped paying and filed a petition to terminate benefits, averring that Ms. Swartz was no longer disabled. At the referee's hearing, Ms. Swartz testified that she remained disabled as a result of her injury; that she has continual pain; that her right knee locks and buckles under her; that she can sit for short periods of time only; that she cannot stand for long

[ 60 Pa. Commw. Page 359]

    periods; that she cannot kneel on her right knee; and that she cannot drive more than short distances. Her medical witness, Dr. Herbert Stein, testified that Ms. Swartz continues to be disabled; that she could not resume her former work at Buttonwood Farms; and that she could not perform any work which would involve squatting, kneeling, running, frequent climbing of stairs, extended walking, sitting for more than one hour, or prolonged standing.

Buttonwood Farms adduced the testimony of Dr. Martin Beller, who gave his medical opinion that Ms. Swartz was no longer disabled and could return to her former work. Dr. Philip Spergel, a vocational rehabilitation expert, also testified for Buttonwood Farms. On direct examination Dr. Spergel testified that he had examined Ms. Swartz and reviewed physical limitations placed upon Ms. Swartz's employability by Dr. Stein and had concluded that suitable work was available to Ms. Swartz. He mentioned several positions available, primarily clerical in nature, which he believed were within Ms. Swartz's capabilities. On cross-examination, Dr. Spergel admitted that all of the named positions would require Ms. Swartz to engage to some extent in the activities not, according to Dr. Stein, within her capabilities. Dr. Spergel conceded that he could not say just how much kneeling, bending, standing, prolonged sitting or other prohibited activity would be required from Ms. Swartz in these positions but he believed Ms. Swartz would be permitted to tailor her working conditions to suit her physical abilities in any of these jobs.*fn1

The referee found as fact that Dr. Stein's testimony was credible and therefore accepted Dr. Stein's opinion that Ms. Swartz remains disabled, and that the cross-examination of Dr. Spergel established that

[ 60 Pa. Commw. Page 360]

Ms. Swartz was not capable of performing the type of jobs described by Dr. Spergel as being available. He characterized Dr. Spergel's testimony as speculative, biased, and not credible and therefore not acceptable as evidence of the availability of work suitable for Ms. Swartz. The referee concluded that Buttonwood Farms had not met its burden of proving that Ms. Swartz's disability had ceased or that suitable work was available to Ms. Swartz and directed the continued payment of benefits ...


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