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COUNTY NORTHAMPTON AND PENNSYLVANIA MANUFACTURERS' ASSOCIATION INSURANCE COMPANY v. COMMONWEALTH PENNSYLVANIA (04/13/82)

decided: April 13, 1982.

COUNTY OF NORTHAMPTON AND PENNSYLVANIA MANUFACTURERS' ASSOCIATION INSURANCE COMPANY, PETITIONERS
v.
COMMONWEALTH OF PENNSYLVANIA, WORKMEN'S COMPENSATION APPEAL BOARD AND RITA COMSTOCK, RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in case of Rita Comstock v. County of Northampton, No. A-73130.

COUNSEL

William M. Thomas, with him John P. Thomas, Thomas & Hair, for petitioners.

Philip D. Lauer, for respondent, Rita Comstock.

President Judge Crumlish and Judges Williams, Jr. and MacPhail, sitting as a panel of three. Opinion by Judge Williams, Jr. Judge Palladino did not participate in the decision in this case.

Author: Williams

[ 66 Pa. Commw. Page 110]

The County of Northampton (appellant) has appealed to this Court from an order entered by the Workmen's Compensation Appeal Board (Board). The Board affirmed in part, and reversed in part, a referee's decision granting appellant's petition to terminate disability benefits to claimant Rita Comstock.

On April 23, 1974 the claimant injured her back in the course of her employment as a nurse's aide at the County of Northampton Home for the Aged, Gracedale. Pursuant to a Notice of Compensation Payable, she was paid total disability benefits at the rate of $90.00 per week, beginning April 24, 1974, and continuing until June 19, 1974. The claimant returned to work for the appellant at the Home for the Aged on June 20, 1974, and reinjured her back on that same date. Thereafter, a Supplemental Agreement for Compensation was entered into whereby it was agreed that claimant was again disabled as of June 21, 1974. Compensation was paid from that date until April 23, 1975, at which time appellant ceased making payments. On August 7, 1975 the County filed a petition to terminate, alleging that claimant had commenced working at the

[ 66 Pa. Commw. Page 111]

Northampton Convalescent Home on April 19, 1975, and that her disability had ceased on or before that date.*fn1 In her answer filed in response to the petition, claimant averred that she had attempted to return to work, but was forced to leave her employment on May 2, 1975 due to continuing disability.

At hearings held before the referee, the claimant presented the testimony of Dr. Rolf Johnson, an orthopedic surgeon. Dr. Johnson had treated claimant since the occurrence of her initial injury on April 23, 1974, and had last examined her on March 4, 1976. On direct examination, he opined that, throughout the period during which he had treated her, claimant was totally disabled by a herniated lumbar disc. On cross-examination, however, Dr. Johnson stated that, although he had examined claimant in April of 1975, he was unaware of her return to work at that time.

In rebuttal, the appellant offered the testimony of Dr. Joseph F. McMahon, Jr., an orthopedic surgeon who had examined claimant on July 20, 1976. Dr. McMahon testified that, in his opinion, there was no objective evidence of any disability at the time of his examination.

The appellant also introduced into evidence a letter written by Dr. Johnson and addressed to appellant's insurance carrier. In this letter, dated June 3, 1975, Dr. Johnson made the following remarks:

It is obvious that this patient is going through with her pregnancy, and I feel that she is no longer disabled due to her accident. At the present time ...


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