Appeal from the Order of the Workmen's Compensation Appeal Board in the case of Rosemary Callahan v. Pet Inc., Whitman's Chocolates, No. A-86734.
Mark R. Cuker, Wapner, Newman & Associates, for petitioner.
Marshall A. Halslup, III, with him, Joseph S. Bekelja, Margolis, Edelstein, Scherlis, Sarowitz & Kraemer, for respondent, National Union Fire Insurance Company of Pittsburgh.
Steven C. Tulliver, with him, J. Davy Yockey, for respondent, Pennsylvania Manufacturers' Insurance Corporation.
Judges Rogers and Palladino, and Senior Judge Barbieri, sitting as a panel of three. Opinion by Senior Judge Barbieri. Judge Palladino dissents.
[ 96 Pa. Commw. Page 356]
This is a workmen's compensation case wherein the Claimant, Rosemary Callahan, petitions for review of an order of the Workmen's Compensation Appeal Board (Board). That order reversed a referee's decision in her favor and denied her total disability benefits.
The following facts are pertinent. Claimant was employed as a packer by Pet, Inc.-Whitman's Chocolates (employer), when she suffered a work-related injury to her lower back on September 22, 1978. As a result of that injury, she suffered a temporary total disability from September 22, 1978 until November 19, 1978,
[ 96 Pa. Commw. Page 357]
during which time she received total disability benefits. She resumed her duties with the employer on November 20, 1978 but her disability recurred on November 29, 1978 and continued until October 14, 1979. The employer filed a petition to terminate in July, 1979, and on October 14, 1979, Claimant executed a stipulation that all disability had ceased and terminated as to her September 22, 1978 injury and she returned to work on October 15, 1979. On February 13, 1980, while doing heavy lifting assembly work for the employer, Claimant injured her back and neck and again became disabled. She subsequently filed claim petitions seeking a reinstatement of compensation for her September 22, 1978 injury and also seeking total disability benefits as a result of her February 13, 1980 injury. After a number of hearings at which only the Claimant produced any evidence, the referee denied her claim to reinstate benefits due to the September 22, 1978 injury but found her partially disabled due to the February 13, 1980 injury and granted her total disability benefits based upon the employer's failure to show availability of suitable work.*fn1 The employer appealed the referee's decision to the Board which reversed the referee holding that the Claimant's medical testimony was incompetent and denied her benefits. Claimant then filed a timely petition for review with this Court.
[ 96 Pa. Commw. Page 358]
In this appeal, Claimant contends that: (1) the medical testimony presented is competent and sufficient to support the referee's decision in her favor; and (2) her injuries were so immediately, directly and naturally the result of her employment activity that unequivocal medical testimony was not necessary for her to establish the causal link between the February 13, 1980 incident and her total disability.
Critical in our inquiry is the referee's eighth finding of fact, which reads
8. On February 13, 1980 while doing heavy assembly work for the Defendant, Claimant injured her back and neck and suffered a recurrence of total disability. This injury was an aggravation of her earlier injury, and therefore constituted a new injury under the Act. Causation of this injury was established by the testimony of ...