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FERN AMBER SMITH v. WORKMEN'S COMPENSATION APPEAL BOARD (SPRING COVE SCHOOL DISTRICT) (11/09/83)

decided: November 9, 1983.

FERN AMBER SMITH, PETITIONER
v.
WORKMEN'S COMPENSATION APPEAL BOARD (SPRING COVE SCHOOL DISTRICT), RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in case of Fern Amber Smith v. Spring Cove School District, No. A-81072.

COUNSEL

David P. Andrews, Patterson, Evey, Rouch, Black, Dorezas & Magee, for petitioner.

Robert G. Rose, Spence, Custer, Saylor, Wolfe & Rose, for respondent, Spring Cove School District and Pennsylvania National Insurance Company.

Judges Rogers, Craig and Doyle, sitting as a panel of three. Opinion by Judge Rogers.

Author: Rogers

[ 78 Pa. Commw. Page 256]

Fern Amber Smith, a workmen's compensation claimant, has appealed from an order of the Workmen's Compensation Appeal Board reversing a referee's award of compensation for a temporary total disability for the period of March 24, 1980 to December 1, 1980. The issue is whether any competent evidence exists in the record to support the referee's finding that the claimant was disabled from March 24, 1980 to December 1, 1980.

The claimant suffered a work-related injury on January 8, 1980 that was described in her Notice of Compensation Payable as "acute bursitis left shoulder" and was paid compensation for a temporary disability from January 8, 1980 to March 24, 1980. On April 9, 1980, the employer filed a Petition for Termination with a Physician's Affidavit of Recovery alleging that the claimant had fully recovered from her disability and was able to resume her activities as a tax collector on March 25, 1980. The claimant did not return to work on March 25, 1980, but was granted a leave of absence and returned on January 2, 1981, without any loss of earnings.

[ 78 Pa. Commw. Page 257]

The record contains medical testimony concerning the date when the claimant fully recovered from her disability from Doctors Robert Bridenbaugh and Gregory J. Fulchiero. Doctor Bridenbaugh who had treated the claimant for her January 8, 1980 injury and executed the Physician's Affidavit of Recovery, testified at a hearing before a referee that:

I saw her on March 10th at which time she was feeling a good bit better as far as her nervousness. She reported that she had arranged with her employer for a six months leave of absence which seemed to take a good bit of the load off her as far as the nervousness is concerned. And, then, I saw her again on March 24th. At this time I told her I felt she was no longer disabled as regards her work and as far as the falling episode [the January 8, 1980 injury]. I did agree with her regarding the leave of absence. I thought it was in her interest, her future health.

When asked whether in his opinion, based on a reasonable degree of medical certainty, the claimant could return to her occupation as a tax collector on March 25, 1980, Dr. Bridenbaugh responded, "[T]o the best of my judgment I thought she was able to return to her employment."

In a deposition Dr. Fulchiero testified as follows:

Q: Doctor, based upon your examination, do you believe she has, or is suffering from any disability, as a result of that ...


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