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BLUE RIDGE WINKLER TEXTILES AND CNA INSURANCE COMPANY v. WORKMEN'S COMPENSATION APPEAL BOARD (EVA VAN HORN) (03/22/83)

decided: March 22, 1983.

BLUE RIDGE WINKLER TEXTILES AND CNA INSURANCE COMPANY, PETITIONERS
v.
WORKMEN'S COMPENSATION APPEAL BOARD (EVA VAN HORN), RESPONDENTS. EVA VAN HORN, PETITIONER V. WORKMEN'S COMPENSATION APPEAL BOARD (BLUE RIDGE WINKLER TEXTILES AND CNA INSURANCE CO.), RESPONDENTS



Appeals from the Order of the Workmen's Compensation Appeal Board in case of Eva Van Horn v. Blue Ridge Winkler Textiles, No. A-78929.

COUNSEL

Bernard M. Billick, Robinson, Hoffner & Billick, for Blue Ridge Winkler Textiles and CNA Insurance Company.

J. Brian Foley, with him Richard S. Campagna, for Eva Van Horn.

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

Author: Blatt

[ 73 Pa. Commw. Page 72]

Before us are the cross appeals of Blue Ridge Winkler Textiles (Blue Ridge)*fn1 and Eva Van Horn (claimant) from an order of the Pennsylvania Workmen's Compensation Appeal Board (Board) which reinstated the claimant's benefits for certain periods but suspended them for others.

The complicated history of this matter is as follows. The claimant was employed for Blue Ridge as a napping machine operator and on October 4, 1973 she sustained a work-related injury in the nature of a lumbar-sacral strain. Pursuant to a notice of compensation

[ 73 Pa. Commw. Page 73]

    payable she received benefits until*fn2 a stipulation was entered into by the parties providing that the claimant was fully recovered as of November 16, 1976 and would receive full benefits up until this date. The referee then terminated her eligibility but apparently a final receipt was not formally executed. On April 13, 1977, the claimant filed a petition to set aside final receipt alleging that she had again become totally disabled due to an acceleration of her back condition caused by her October 4, 1973 injury. Because a formal final receipt had not been executed, the referee treated this petition as a petition to reinstate compensation. After a hearing and upon consideration of testimony given by the claimant's medical expert, the referee determined that the claimant had failed to establish*fn3 that her condition was related to her injury of October 4, 1973, and, had failed to prove that she was incapable of performing positions available to her. The Board set aside the referee's decision and instructed him to appoint an impartial physician to determine whether or not the claimant's condition on April 13, 1977 was related to her original work-related injury. Upon remand, after considering the testimony given by the aforementioned impartial physician and that given by the claimant's medical expert, the referee found that:

     the claimant did not establish whether her back difficulties occurring after November 16, 1976

[ 73 Pa. Commw. Page 74]

    are related to the . . . [original] injury occurring on October 4, 1973, or are related to the pre-existing condition of intervertebral disc disease of the lumbrosacral spine, or are related to the condition giving rise to the back surgery in 1969 or 1970, or are related to a combination thereof;

     the claimant was not incapacitated from performing . . . the position of shearer machine operator [which] was available to the claimant from May 4, 1977 to at least ...


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