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STATE PRODUCTS CORPORATION AND NEW HAMPSHIRE INSURANCE COMPANY v. COMMONWEALTH PENNSYLVANIA (08/18/81)

decided: August 18, 1981.

STATE PRODUCTS CORPORATION AND NEW HAMPSHIRE INSURANCE COMPANY, PETITIONERS
v.
COMMONWEALTH OF PENNSYLVANIA, WORKMEN'S COMPENSATION APPEAL BOARD AND LARRY J. AUSTIN, RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in the case of Larry J. Austin v. State Products Corporation, No. A-78433.

COUNSEL

Matthew R. Wimer, Murovich, Reale & Fossee, for petitioners.

John E. Quinn, Sikov and Love, P.A., for respondent, Larry J. Austin.

Judges Mencer, Blatt and MacPhail, sitting as a panel of three. Opinion by Judge MacPhail.

Author: Macphail

[ 61 Pa. Commw. Page 367]

State Products Corporation (Employer) and its workmen's compensation insurance carrier appeal an order of the Workmen's Compensation Appeal Board (Board), dated June 12, 1980, that affirmed the referee's denial of Employer's petition to terminate workmen's compensation benefits to Larry J. Austin (Claimant). We affirm.

Claimant had sustained a lumbosacral sprain in a work-related automobile accident on March 3, 1978. As a result of his injury, Claimant was unable to continue working as a traveling salesman and was, therefore, totally disabled under The Pennsylvania Workmen's Compensation Act (Act).*fn1 He received benefits from March 3, 1978, until August 11, 1978, when Employer filed a petition for termination alleging that disability had ceased. Claimant denied the allegation.

Conflicting medical evidence was presented at the hearing, which was held October 4, 1979. Employer submitted the deposition of Eric Minde, M.D., a specialist in physical medicine and rehabilitation, who had examined Claimant on August 2, 1978, and had

[ 61 Pa. Commw. Page 368]

    found Claimant fully recovered. Dr. Minde opined Claimant's lack of agility and back discomfort after prolonged periods of sitting were due to Claimant's obesity and not to any residual effects of the March accident. Claimant testified that he still suffered from back pain and that he was unable to sit for more than 45 minutes without experiencing pain. He also testified that he was still under the care of a medical doctor and a chiropractor. Claimant further testified that, although he was able to drive an automobile for very short periods of time, he was unable to resume the constant driving required by his former occupation. Claimant stated he had tried to accompany another salesman for a day in September 1978 but because of the pain he had to be taken home after only a few hours. Claimant submitted the deposition of Howard T. Lewis, Jr., M.D., a general practitioner specializing in nutrition and the treatment of degenerative illnesses, who was currently treating and for several years had treated Claimant for obesity. Dr. Smith testified that, prior to the accident in March, Claimant had been surprisingly agile for a man his size. Dr. Smith opined Claimant's injury was the cause of the pain he experienced when he sat for prolonged periods or made certain movements. Claimant also introduced a report from Steven W. Theis, M.D., an orthopedic surgeon, who had examined Claimant on July 5, 1979, and had determined Claimant suffered from chronic lumbosacral sprain that was slow to resolve due to his obesity. The report was admitted into evidence on the stipulation that, if Dr. Theis had been deposed, he would have said Claimant was able to perform activities that do not require prolonged periods of sitting or lifting in excess of 25 pounds. Dr. Theis stated that Claimant should not drive an automobile for prolonged periods and that any occupation chosen by Claimant should not require excessive bending.

[ 61 Pa. Commw. Page 369]

Also testifying for Employer at the hearing was a representative from Vocational Rehabilitation Services (Representative) who had interviewed Claimant for an hour two days prior to the hearing. She presented a job availability report that listed several jobs she felt were within Claimant's present abilities.

After considering all the evidence, the referee denied Employer's petition and held Claimant was still totally disabled. Employer appealed. The Board affirmed the ...


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