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THATCH v. SUPERIOR ZINC COMPANY (03/06/72)

decided: March 6, 1972.

THATCH
v.
SUPERIOR ZINC COMPANY, ET AL.



Appeal from the Order of the Court of Common Pleas of Bucks County in case of Jacob T. Thatch v. Superior Zinc Company and Pennsylvania Manufacturers' Association Insurance Co., No. 1509, May Term, 1970.

COUNSEL

John F. McElvenny, for appellants.

Charles F. Quinn, for appellee.

Judges Wilkinson, Jr., Mencer and Rogers, sitting as a panel of three. Opinion by Judge Rogers.

Author: Rogers

[ 4 Pa. Commw. Page 551]

This is an appeal from an order of the Court of Common Pleas of Bucks County remanding the record

[ 4 Pa. Commw. Page 552]

    to the Workmen's Compensation Board ". . . for further consideration and determination and the making of consistent findings of fact in support of such conclusions of law and order as it shall then consider appropriate."

On July 15, 1964, claimant-appellee fell a distance of some 15 feet to the ground suffering injuries which are the subject of this litigation. He entered into a compensation agreement with his employer, the appellant here, which described his injuries as a ". . . cerebral concussion with superficial lacerations and contusions." In fact, as the hearing before the referee revealed, claimant also suffered a disabling back injury. He later executed a final settlement receipt stating that he ". . . was able to return to work on 9-21-64 without any disability or loss of earning power due to injuries received in this accident." Both the agreement and the final receipt were prepared by the appellant or its carrier.

On January 3, 1966, claimant filed a "Petition to Review Provisions of an Existing Compensation Agreement" alleging that his disability had recurred. Before the referee, claimant presented evidence that his back was injured in the fall, that he returned to work with the aid of a spinal brace paid for by the employer, that subsequent to signing the final receipt he received treatments for the back condition paid for by the employer, and that his partial disability resulting from the accidental injury gradually worsened until a chronic lumbosacral strain had developed. The referee concluded that the compensation agreement materially misstated the extent of the claimant's injury and, acting pursuant to Section 413 of the Workmen's Compensation Act, Act of June 2, 1915, P.L. 736, as amended, 77 P.S. ยง 771, modified the agreement so as to include a chronic lumbosacral strain, awarded additional compensation

[ 4 Pa. Commw. Page 553]

    and, although not explicitly so stating, thus set aside the final receipt.

The referee found as a fact that ". . . [c]laimant returned to work on September 21, 1964, with the aid of a spinal brace and thereafter his condition resolved itself into an undetermined partial disability resulting from his said accidental injury, which gradually worsened until by June 10, 1966, the claimant had developed a chronic lumbosacral strain, which still persists." He concluded that ". . . [c]laimant's physical condition having been such at the time he returned to work after the said accidental injury to him, as to make it necessary for him to wear a spinal brace and his said condition gradually worsened until he developed a ...


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