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January 2, 1962


Appeal, No. 41, March T., 1962, from judgment of Superior Court, April T., 1960, No. 228, reversing 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; reargument refused February 5, 1962.


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

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

Before Bell, C.j., Musmanno, Jones, Cohen, Bok, Eagen and Alpern, JJ.

Author: Jones

[ 406 Pa. Page 59]


On December 17, 1951, Lulu T. McGahen [claimant] sustained an accident in the course of her employment by General Electric Company [employer]. Ten years later - after three hearings before two compensation referees, three decisions by the Workmen's Compensation Board [Board], three decisions by the Court of Common Pleas of Erie County and a decision by the Superior Court - the question of claimant's right to compensation for such accident still remains undetermined.

This is an appeal from a unanimous decision of the Superior Court (195 Pa. Superior Ct. 651, 172 A.2d 324), which reversed a judgment of the Court of Common Pleas of Erie County [Court] and reinstated an award by the Board to the claimant of compensation, even though, in the language of the Superior Court, that Court could not tell (p. 665): "[under] the state of this record, ... whether [the employer] will be paying compensation for a non-existent injury under our decision ...

[ 406 Pa. Page 60]

A proper understanding of the issues which this appeal presents requires a recital at length of the factual background of this litigation. On December 17, 1951, the claimant, in the course of her employment, slipped and fell, striking her right shoulder and knees upon the floor. Claimant suffered a subdeltoid bursitis with contusions of the right shoulder and knees but continued to work until February 9, 1952, at which time she left her employment. On February 29, 1952, the claimant and her employer entered into a written compensation agreement under which the claimant received $25 weekly from February 16, 1952 until March 18, 1952 ($114.29) at which time she returned to work.*fn1 The claimant continued to work at her regular employment from March 18, 1952 until September 9, 1952 when she left her employment to which she has not since returned.

On March 28, 1952, the claimant signed, in triplicate, a final receipt and received a check from her employer as final payment of compensation. Two executed copies of this final receipt remained in the employer's possession but the claimant retained the original executed receipt and the check, the latter having been endorsed by claimant. Both the original executed receipt and the check remained in a "bond box" at claimant's home, the check not being cashed and the original final receipt not being returned to the employer.*fn2 The execution of this final receipt and the endorsement of the check are admitted by claimant.

[ 406 Pa. Page 61]

Neither the original nor either of the two executed copies of the final receipt were filed with the Workmen's Compensation Bureau [Bureau] until after an inquiry on August 4, 1953 directed by the Director of the Bureau to the employer.*fn3 On August 7, 1953 the employer sent to the Bureau a photostatic copy of an executed copy of the final receipt, "apparently informing the Bureau that the original had not been returned and the check had not been cashed". Upon receipt of the photostatic copy, the Bureau did nothing.

On September 14, 1952 - five days after leaving her employment - claimant was hospitalized and at that time she applied for benefits under a mutual group health insurance policy stating as the cause of her hospitalization: "right subacromial bursitis, chronic, scalenus anticus syndrome secondary to No. 1 involutional melancholia-paranoid type with depressed features."*fn4 In the application for insurance benefits claimant failed to answer the question whether her disability resulted from an accident. Insurance benefits for twenty-six weeks were paid to claimant.

Thereafter, claimant inquired of Referee Smith as to her compensation rights and he finally wrote to her stating that, from the information obtained from her

[ 406 Pa. Page 62]

    employer, her claim, not having been filed within one year, was barred.

On January 12, 1954 - approximately two years after the accident and one year and nine months after the date of the most recent payment of compensation to her - claimant filed a petition to review, under Section 413 of The Pennsylvania Workmen's Compensation Act, as amended,*fn5 the compensation agreement entered into on February 29, 1952. Thereafter, three hearings were held before two referees.*fn6 On February 26, 1954 - the first hearing - neither claimant nor any witnesses on her behalf appeared but claimant's counsel called J. A. Hurley, a representative of employer, for cross-examination,*fn7 and this hearing was continued to give the employer an opportunity to locate the check which had accompanied the original final receipt; on April 20, 1954 - the second hearing - neither the claimant nor any witness on her behalf appeared but again Mr. Hurley was cross-examined. At this hearing, Hurley testified that a photostatic copy of the final receipt had been mailed to the Board on August 7, 1953, that the employer heard nothing further from the Bureau and that the claimant had returned to work in March 1952. On August 15, 1955 a third hearing was held before Referee ...

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