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WESTINGHOUSE ELECTRIC CORPORATION v. WORKMEN'S COMPENSATION APPEAL BOARD (MCCLAVE) (10/18/89)

decided: October 18, 1989.

WESTINGHOUSE ELECTRIC CORPORATION, PETITIONER,
v.
WORKMEN'S COMPENSATION APPEAL BOARD (MCCLAVE), RESPONDENTS



PETITION FOR REVIEW, (WORKMEN'S COMPENSATION).

COUNSEL

Arthur A. Asti, Jr., Trushel, Klym & Asti, Pittsburgh, for petitioner.

C. Jerome Moschetta, Washington, Sullivan & Sullivan, Lebanon, for Kathleen M. McClave, respondents.

Crumlish, Jr., President Judge, Colins, J., and Narick, Senior Judge.

Author: Colins

[ 129 Pa. Commw. Page 219]

Westinghouse Electric Corporation (employer) petitions for review of an order entered December 30, 1988 by the Workmen's Compensation Appeal Board (Board) which reversed the referee's decision and reinstated the payment of benefits as of January 2, 1985.

Kathleen M. McClave (claimant) was employed as an elevator mechanic's helper*fn1 on December 20, 1983 when she suffered a compensable injury to her right arm, shoulder and neck. Claimant was paid maximum allowable benefits in the amount of $306.00 per week beginning February 13, 1984, pursuant to a Notice of Compensation Payable. On June 5, 1984, employer filed a petition to terminate benefits and a request for supersedeas alleging that claimant had

[ 129 Pa. Commw. Page 220]

    fully recovered from her work-related injuries as of March 5, 1984 and that she was able to resume, without limitations, her pre-injury job.

Hearings were held before the referee.*fn2 Claimant testified that she could not return to her pre-injury job because she did not believe she could perform the tasks of climbing ladders, carrying heavy materials, and unloading trucks.*fn3

Via deposition, Albert B. Ferguson, Jr., M.D. testified on behalf of claimant that he first saw claimant on July 20, 1984 and diagnosed her as having tendonitis. Dr. Ferguson saw claimant again on November 12, 1984 and opined that she was incapable of returning to her pre-injury employment, but that she could do light duty work.*fn4 Richard A. Johnson, M.D. testified on claimant's behalf that he first saw claimant on March 19, 1985 and last saw her on January 20, 1986. Dr. Johnson opined that claimant could only return to light duty work as of May 23, 1985 as she was able to lift no more than fifteen to twenty pounds with her right arm and was to avoid repeated strenuous tasks with that arm.*fn5

Jimmy J. Ong, M.D. testified on employer's behalf that he first saw claimant on February 6, 1984 and that claimant had a history of neck, right arm and wrist pain as a result of the injury at work. Dr. Ong testified that his diagnosis of claimant's condition was cervical strain and that, as a result, claimant was disabled from her pre-injury job. He later released claimant to return to her pre-injury job on March 6, 1984.

In addition to the testimony, the referee viewed surveillance films of claimant taken on January 2, January 8, and February 1, 1985 which, ...


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