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JACQUELINE JOHNSON v. WORKMEN'S COMPENSATION APPEAL BOARD (CARTER FOOTWEAR (12/29/88)

decided: December 29, 1988.

JACQUELINE JOHNSON, PETITIONER
v.
WORKMEN'S COMPENSATION APPEAL BOARD (CARTER FOOTWEAR, INC.), RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board, in the case of Jacqueline Johnson v. Carter Footwear, Inc., No. A-93888.

COUNSEL

John J. Brazil, Jr., Brazil & Brazil, for petitioner.

Hugh P. Mundy, with him, Sean P. McDonough, Dougherty, Mundy, Leventhal & Price, for respondent, Carter Footwear, Inc.

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

Author: Barbieri

[ 122 Pa. Commw. Page 405]

Jacqueline Johnson (Claimant) petitions for review of the order of the Workmen's Compensation Appeal Board (Board) which denied her petition for rehearing. We reverse and remand.

On October 5, 1984, Claimant suffered a work-related lumbrosacral sprain while in the employ of Carter Footwear, Inc. (Employer) and received benefits for total disability pursuant to a notice of compensation payable. On July 1, 1985, Employer filed a petition for termination relying on the testimony of Doctor Joseph R. Sgarlat who opined that Claimant had recovered from her low back sprain and that all Claimant's x-rays, CAT-scan and EMG studies were normal and he could find no evidence of herniated disk, nerve damage, or muscle atrophy. Claimant presented the testimony of Doctor Lewis L. Rogers who stated that although objective studies of Claimant were negative, she continued to suffer from a soft tissue injury. The referee accepted Doctor Sgarlat's testimony and granted Employer's petition on June 8, 1987.

Claimant then petitioned the Board for a rehearing in order to present newly discovered medical evidence of Claimant's condition. Specifically, Claimant underwent a myelogram followed by a CAT-scan on July 7,

[ 122 Pa. Commw. Page 4061987]

, which, according to the report of Doctor John C. Querci, shows that Claimant suffers from a herniated disk at the L5 region. The Board denied Claimant's request, citing Taylor v. Workmen's Compensation Appeal Board (Doylestown Township), 108 Pa. Commonwealth Ct. 642, 530 A.2d 975 (1987). But Taylor does not involve a petition for rehearing.

The grant or denial of a petition for rehearing is within the discretion of the Board. Douglas v. Workmen's Compensation Appeal Board (Bethlehem Mines Co.), 32 Pa. Commonwealth Ct. 156, 377 A.2d 1300 (1977). It was formerly settled that the Board does not have the power to remand cases to a referee simply to permit the presentation of additional medical evidence which was available at the time of the initial hearing. Genovese v. Workmen's Compensation Appeal Board (National Record Mart, Inc.), 69 Pa. Commonwealth Ct. 176, 450 A.2d 325 (1982).

However, in Jones v. Workmen's Compensation Appeal Board (First Pennsylvania Bank), 76 Pa. Commonwealth Ct. 345, 463 A.2d 1266 (1983), we held that where vital evidence not available at the time of the referee's decision was discovered by surgery thereafter, it was an abuse of the Board's discretion to deny a request for rehearing. We stated:

Here, the claimant sought to introduce after-discovered evidence of DeQuervain's Disease and ulnar nerve inflammation, which is relevant to the issue of whether or not she continued to be disabled. Mindful that in termination petition cases, an employer must prove conclusively the termination of a claimant's disability, Certainteed Corp. v. Workmen's Compensation Appeal Board, 57 Pa. Commonwealth Ct. 646, ...


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