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RITE AID CORPORATION AND HARTFORD INSURANCE GROUP v. WORKMEN'S COMPENSATION APPEAL BOARD (BUPP) (01/15/88)

decided: January 15, 1988.

RITE AID CORPORATION AND HARTFORD INSURANCE GROUP, PETITIONERS
v.
WORKMEN'S COMPENSATION APPEAL BOARD (BUPP), RESPONDENTS



Appeal from the order of the Workmen's Compensation Appeal Board, in case of Bonnie Bupp v. Rite Aid Corporation, No. A-91112.

COUNSEL

R. Burke McLemore, Jr., Thomas & Thomas, for petitioners.

Ira H. Weinstock, with him, Gerard M. Mackarevich, Ira H. Weinstock, P.C., for respondent, Bonnie Bupp.

Judges Craig and Colins, and Senior Judge Barbieri, sitting as a panel of three. Opinion by Senior Judge Barbieri.

Author: Barbieri

[ 112 Pa. Commw. Page 549]

Rite Aid Corporation (Employer) appeals the order of the Workmen's Compensation Appeal Board (Board) which denied Employer's petition to terminate compensation and granted Claimant Bonnie Bupp's petition to reinstate compensation. We shall affirm.

Claimant was employed as a packer-picker by Employer. Her job involved selecting various items of merchandise from racks which ranged from floor level to overhead, pricing them, and putting them in tote bins for distribution to stores. In 1979, Claimant suffered a serious injury to her left shoulder for which she received compensation. After surgery involving a "stapling" procedure she returned to work. On May 4, 1983, Claimant bruised her left shoulder when she was hit by a falling box. Compensation was paid pursuant to a notice of compensation payable for this injury until Claimant returned to work on September 12, 1983. The parties

[ 112 Pa. Commw. Page 550]

    stipulated that compensation would be suspended since Claimant returned to her pre-injury job with no loss of earnings. On January 6, 1984, Claimant was fired for failing to keep up with production quotas. Employer then filed a petition for termination alleging all disability due to the May 4, 1983, injury had ceased. Claimant countered with a petition to reinstate the suspended compensation.

Claimant's treating physician, Doctor Frank Bryan, submitted the only medical testimony offered. Doctor Bryan testified that the contusion Claimant suffered May 4, 1983, had accelerated her previous condition and interfered with Claimant's ability to do overhead lifting with her left hand. Claimant, although cleared to go back to work in September 1983, had continued to experience difficulties with overhead lifting and a surgical decompression was performed on the left shoulder in March 1985. Employer attacks this testimony on two grounds.

First, Employer asserts that any continuing disability dates from the 1979 injury, for which a different carrier paid compensation, and that the medical testimony is ambiguous in distinguishing between the disability attributable to the two injuries. Rationalization of these ambiguities is the exclusive province of the referee which we will not disturb. Long Service Co., Inc. v. Workmen's Compensation Appeal Board (Schell), 99 Pa. Commonwealth Ct. 112, 512 A.2d 1322, 1324 (1986). Employer also contends there is no medical reason why Claimant could not do the job using her uninjured right arm to perform the overhead lifting. The only testimony submitted on this point was that of Claimant who testified that she did use her right hand 75% of the time. As Claimant was fired for failing to keep up production levels, the Board's rationale that Claimant's use of her disabled arm 25% of the time contributed to her inability

[ 112 Pa. Commw. Page 551]

    to perform the job at the required production ...


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