Appeal from the Order of the Workmen's Compensation Appeal Board in case of Frances S. Kraemer v. Perkiomen Valley School District, No. A-76846.
Harry L. Green, for petitioner.
Kathleen Nagurny, for respondents.
Judges Williams, Jr., Barry and Barbieri, sitting as a panel of three. Opinion by Judge Barry.
[ 82 Pa. Commw. Page 470]
Frances S. Kraemer (claimant) appeals a decision of the Workmen's Compensation Appeal Board (Board) which affirmed a referee's determination that claimant's disability resulting from a work-related injury sustained on June 20, 1974, ceased and terminated on September 30, 1977. Claimant had been employed by the Perkiomen Valley School District (employer) as a custodial worker with duties that included cleaning and wet and dry mopping, dusting, buffing, and moving furniture in twenty classrooms. While performing
[ 82 Pa. Commw. Page 471]
her duties, claimant slipped and fell on the wet floor on June 20, 1974, sustaining injury to her back. As a result, she had pain in her lower back which caused difficulty when sitting, standing, and bending. On September 30, 1975, the employer filed a petition for termination alleging that claimant's disability had ceased and terminated. The referee, however, determined that claimant's disability was ongoing, and awarded compensation benefits from that time indefinitely into the future. Counsel fees were also awarded.
In October, 1977, the employer filed another petition for termination alleging claimant's disability had ended on September 30, 1977. From the testimony adduced at this hearing, the referee determined that claimant was capable of returning to her normal regular duties as a custodial worker and that her work-related disability had terminated as of September 30, 1977. The Board affirmed the findings of the referee. This appeal followed.
Claimant alleges the referee placed improper reliance upon the medical testimony of Dr. John A. Vann, an orthopedic surgeon practicing in Norfolk, Virginia, where claimant had moved after the first hearing. Dr. Vann had examined the claimant at the request of the carrier. He testified that claimant had fully recovered from her injury and could resume her former position as a custodian. Because the doctor was located in Virginia and unavailable to testify at the hearing, the referee, pursuant to Section 422 of The Pennsylvania Workmen's Compensation Act (Act), Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 835, ordered his deposition to be taken in Virginia:
If any party or witness resides outside of the Commonwealth, or through illness or other
[ 82 Pa. Commw. Page 472]
cause is unable to testify before the board or a referee, his or her testimony or deposition may be taken within or without this Commonwealth, in such manner and in such form as the department ...