PETITION FOR REVIEW, (WORKMEN'S COMPENSATION).
Stuart W. Benson, III, Dion G. Rassias, Dickie, McCamey & Chilcote, P.C., Pittsburgh, for petitioners.
Michael P. Sosso, Fricker & Associates, Pittsburgh, for respondents.
Doyle and McGinley, JJ., and Barbieri, Senior Judge.
[ 127 Pa. Commw. Page 200]
Holmes House and PMA Insurance Company (Employer) appeal the order of the Workmen's Compensation Appeal Board (Board) which reversed a referee's decision granting
[ 127 Pa. Commw. Page 201]
Employer's modification petition and reinstated Mary Jane Shanahan (Claimant) to total disability benefits. We affirm.
Claimant was employed as a nurse's aide. On August 15, 1979, Claimant suffered a low back strain while bending over to assist a patient. She received benefits for total disability pursuant to a notice of compensation payable. Claimant returned to work on August 8, 1980. She claimed to have suffered another low back strain while lifting a patient on August 11, 1980, and has not worked since.
Two petitions were filed in this case and consolidated by the referee. Employer filed a petition for termination, modification or suspension accompanied by a physician's affidavit stating that all disability had ceased as of March 14, 1980. Claimant filed a new claim petition alleging she had injured her back on August 11, 1980, and was totally disabled since that date according to the testimony of her physician, Doctor Samuel Sherman, who examined Claimant on March 18, 1981.
Referee Darkins, in a decision dated November 18, 1982, found that all Claimant's disability had ceased on March 14, 1980, and granted Employer's termination petition. The referee found that Claimant had subsequently suffered a recurrence of disability from her back injury of August 11, 1980. However, the referee found that such disability did not start from the date of the incident or "injury" causing the recurred disability, August 11, 1980, but from the date of Claimant's examination with her treating physician, March 18, 1981.*fn1 The referee then reinstated compensation as of March 18, 1981.
Employer also presented the testimony of a rehabilitation counselor, Antonia Scarlata, who first interviewed Claimant on June 21, 1982. Employer's counselor testified she had found five job openings described to Claimant involving light or sedentary work. Referee Darkins found that none
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of these was applied for by Claimant.*fn2 The referee accepted the counselor's testimony, finding that there
existed alternative available work within the Claimant's limitations for all periods of the Claimant's disability wherein she would have an earning power of $140.00 per week, thus leaving the Claimant with a residual loss of earnings of $33.25, entitling the Claimant to partial disability benefits of $22.17 per week from March 18, 1981 through ...