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June 15, 1961


Appeal, No. 228, April T., 1960, from judgment of Court of Common Pleas of Erie County, May T., 1958, No. 121, also May T., 1956, No. 410, in case of Lulu T. McGahen v. General Electric Company. Judgment reversed.


John M. Wolford, with him Anthony L. Gambatese, for appellant.

A. Grant Walker, with him Gifford, Graham, MacDonald & Illig, for appellee.

Before Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ. (rhodes, P.j., absent).

Author: Flood

[ 195 Pa. Super. Page 652]


This case has been three times before the workmen's Compensation Board and three times before the

[ 195 Pa. Super. Page 653]

    common pleas court. As a result of this otherwise regrettable circumstance, the facts, which at the beginning were in considerable dispute, have become reasonably clear and the issues have been reduced to one - the validity of a final receipt signed by the claimant in triplicate on March 28, 1952. The referee and the board held that this final receipt was not valid under the act and that since no petition to terminate had ever been filed, the agreement for compensation executed between the parties on February 29, 1952 was still in effect and the appellant was entitled to compensation for the entire period during which she had been out of work since September 9, 1952, her last day on the job. The court in its final opinion held that the receipt was valid and that the plaintiff had not sustained her burden of proving recurrence of her disability, and entered judgment for the defendant.

Since the board and the court have never seen eye to eye on the inferences to be drawn from the facts or on the law, we feel it necessary to set forth the chronology of events at greater length than would ordinarily be required when there is so little dispute as to what actually occurred.

1. The appellant, on December 17, 1951 met with an accident in the course of her employment which resulted in sub deltoid bursitis of the shoulder, contusion of the right shoulder and contusion of both knees. She apparently was able to work from the date of the accident until February 9, 1952. On that date she became so disabled she had to leave her work and the parties entered into a compensation agreement. This agreement recited the accident of December 17, 1951 and the resultant disability on February 9, 1952 and provided for open-end compensation at the rate of $25.00 per week.

She returned to work on March 28, 1952 at which time she signed a final receipt in triplicate and received

[ 195 Pa. Super. Page 654]

    a check for a final payment of compensation She left the two executed copies of the final receipt with the defendant but took home the original executed final receipt and the check. She endorsed the check, but apparently put both the check and the receipt in a drawer and forgot all about them. At any rate, she never cashed the check or returned the executed original final receipt to the defendant.

She continued to work from the execution of the receipt on March 28, 1952, until September 9, 1952, when she left the job and was hospitalized five days later. She then applied for health and accident insurance benefits. On her application, apparently executed while she was in the hospital, the cause of the hospitalization, evidently obtained from the hospital records, was stated to be "right subacromial bursitis, chronic, scalenus anticus syndrome secondary to number one involutional melancholia-paranoid type with depressed features". Subacromial bursitis apparently is practically indistinguishable medically from sub deltoid bursitis. It therefore appears that this record, introduced by the defendant, indicates that the plaintiff may still have been suffering from the effects of the injury to her shoulder when she left the job in September, 1952. However, the evidence is not such as to enable us to determine conclusively that she was disabled as a result of this injury after September 1952 and if, as the court held, she has the burden of conclusively proving continuance or recurrence of the original injury, she has not met it. In her application for insurance benefits there was no answer made to the question as to whether or not her disability resulted from an accident.

The insurance that she received as a result of this hospitalization ran for a period of twenty-six seeks. After this period she began to inquire of the Bureau of Workmen's Compensation whether she was not entitled

[ 195 Pa. Super. Page 655]

    to further workmen's compensation because of the accident. On July 31, 1953, Referee Smith inquired of the defendant about the status of appellant's claim for workmen's compensation. The defendant replied on August 4, 1953, that in the company's opinion, the illness which affected the claimant was not related to her injury and that while she might have had some residual bursitis during the past months the primary cause of her prolonged absence was her psychosis. Smith on the same day wrote to the appellant that based on information furnished him by her employer her claim was barred because it had not been filed within one year.

Under the same date, August 4, 1953, the director of the bureau wrote to the defendant to inquire about the absence of an interim or final receipt in the bureau's records of the case. On August 7, 1953, the defendant sent the bureau a photostat of an executed copy of the receipt in its possession, apparently informing the board that the original had not been returned and the check had not been cashed. The bureau did nothing by way of approval or disapproval of the final receipt.

These are the facts upon which the case turns. The proceedings thereafter before two referees and an ensuing dialogue between the board and the court, resulting in three opinions by each, must be briefly summarized.

On January 12, 1954, the claimant filed the petition to review now before us, claiming that the defend3at's doctor falsified a report that she was absent because of illness and stating that she had refused to sign a final ...

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