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LEILA ELAINE ROGERS v. WORKMEN'S COMPENSATION APPEAL BOARD (STROUSE/GREENBERG & COMPANY AND HARTFORD INSURANCE COMPANY) (10/23/89)

decided: October 23, 1989.

LEILA ELAINE ROGERS, PETITIONER,
v.
WORKMEN'S COMPENSATION APPEAL BOARD (STROUSE/GREENBERG & COMPANY AND HARTFORD INSURANCE COMPANY), RESPONDENTS



PETITION FOR REVIEW, (WORKMEN'S COMPENSATION).

COUNSEL

Mitchell A. Sommers, for petitioner.

W. Jeffrey Sidebottom, Lancaster, with him, Paul D. Clouser, Middletown, Barley, Snyder, Cooper & Barber, Lancaster, for respondents.

Doyle and McGinley, JJ., and Barbieri, Senior Judge.

Author: Barbieri

[ 129 Pa. Commw. Page 232]

Leila Elaine Rogers, Claimant in this workmen's compensation case, petitions for review of an order of the Workmen's Compensation Appeal Board (Board), sustaining a referee's decision modifying her compensation benefits from total disability to those for partial disability. We affirm in part and reverse in part.

The facts as set forth in the referee's findings, which we find are supported by substantial evidence, include the following:

1. The Claimant, as a result of work activities for Strouse Greenberg and Co., sustained a low back injury on September 22, 1984 and has been receiving compensation in accordance with a Notice of Compensation Payable dated November 8, 1984, indicating an average weekly wage of $209.23 and a compensation rate of $160.00.

7. This Referee has reviewed the evidence in this matter including the medical testimony submitted by Claimant and defendant. This Referee believes that the claimant is only partially disabled and finds the vocational placement testimony of Mr. Risser and the testimony of Dr. Robert C. Steinman credible and believable that the Claimant is able to work within restrictions and that such work is available to the Claimant. Unfortunately for the Claimant, she elected not to follow up on job referrals that were sent to the Claimant by Hoover Rehabilitation Services, and her only allegation is that she feels she is totally disabled. However, this Refere [sic] does not accept that contention and accepts the testimony of Dr. Steinman that the Claimant is only partially disabled and accepts the testimony of Defendant's vocational expert that there are jobs within the Claimant's reach, given her vocational educational and medical restriction background. Although there were many jobs which the Claimant could perform, as set forth in the testimony in this case, this Referee particularly finds that the testing inspector job at Electron Energy Corporation is appropriate

[ 129 Pa. Commw. Page 233]

    for the Claimant and will establish an earning power based on that position which the claimant failed to apply for or fill an application. The earning power of that position was $171.20 effective September 25, 1986.

There was countervailing testimony adduced by the Claimant as to which the referee made the following findings:

10. This Referee rejects Dr. Gurr's testimony that the Claimant is chronically disabled as not competent; and accepts that portion of Dr. Shultz's testimony as competent and credible that under the restrictions set by Dr. Steinman, a Doctor of Physical Medicine, ...


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