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ST. JOE ZINC v. WORKMEN'S COMPENSATION APPEAL BOARD (AMBROSE) (10/16/85)

decided: October 16, 1985.

ST. JOE ZINC, PETITIONER
v.
WORKMEN'S COMPENSATION APPEAL BOARD (AMBROSE), RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in case of Clarence Ambrose v. St. Joe Zinc, No. A-81392.

COUNSEL

Bruce E. Woodske, Reed, Luce, Good, Tosh & McGregor, for petitioner.

Alexander J. Pentecost, with him, Amiel B. Caramanna, Jr., for respondent, Clarence Ambrose.

Judges Rogers and Palladino, and Senior Judge Blatt, sitting as a panel of three. Opinion by Judge Rogers.

Author: Rogers

[ 92 Pa. Commw. Page 260]

St. Joe Zinc, the former employer of Clarence Ambrose, has filed a petition for review of an order of the Workmen's Compensation Appeal Board affirming a decision of a referee awarding compensation for total disability to Mr. Ambrose during the period July 3, 1980 through January 26, 1981.

The claimant suffered a back injury in the course of his employment on August 28, 1979. After proceedings not necessary here to describe, compensation was suspended effective September 17, 1979, when the claimant went back to work with no loss of earnings although with a residual disability of his injured back. On December 20, 1979, the appellant's plant was shut down and the claimant became unemployed. He then embarked upon a search for employment which proved unavailing.

On July 3, 1980 the claimant experienced severe and disabling low back pain and consulted his treating physician, a Dr. Helsing, who in a deposition taken

[ 92 Pa. Commw. Page 261]

September 19, 1980, testified that he saw the claimant at a hospital emergency room on July 3, 1980, and that the claimant was then totally disabled with acute back sprain and muscle spasm. In response to a question by the employer's counsel, Dr. Helsing gave his opinion that the claimant's disability could persist for from two days to two months after July 3, 1980. On July 14, 1980 the claimant was examined by a Dr. Minde who testified that the claimant was then totally disabled.

The claimant testified that after his original injury he had continuous, but not always acute, low back pains, interrupted at intervals by flare-ups during which he would be immobilized. He testified that he returned to base level back pain in about eight to ten days after July 3, 1980.

The referee as we have noted awarded compensation for total disability from July 3, 1980 through January 26, 1981, the latter being the day before the claimant returned to work for another employer without loss of earnings. The referee suspended compensation effective January 27, 1981.

The employer contends that the referee's decision to extend payments until January 26, 1981 is not supported by the evidence, noting that the claimant testified to the effect that his back returned to its base level eight to ten days after the July 3, 1980 flare-up. It is argued on behalf of the claimant on the other hand that Dr. Minde testified that he examined the claimant on July 14, 1980, eleven days after the July 3 flare-up, and found him to be still totally disabled and that Dr. Helsing's testimony which the employer produced was to the effect that the intervals of disability ...


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