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POSSUMATO v. MIDVALE-HEPPENSTALL CO. (03/15/72)

decided: March 15, 1972.

POSSUMATO
v.
MIDVALE-HEPPENSTALL CO.



Appeal from the Order of the Court of Common Pleas of Philadelphia County, in case of Anthony Possumato v. Midvale-Heppenstall Co., No. 745, November Term, 1968.

COUNSEL

John F. McElvenny, with him Frederick W. Anton, III, and Henry F. Furman, for appellant.

Howard Wallner, for appellee.

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

Author: Wilkinson

[ 4 Pa. Commw. Page 665]

Claimant-appellee was injured on April 30, 1964, while working as a boiler repairman for appellant. Under a Compensation Agreement, he received benefits based on total disability from May 7, 1964, until March 22, 1965. On March 23, 1965, he returned to his former work and on March 29, 1965, executed a final receipt. He worked until November 1, 1965, when he left his work, and on December 3, 1965, filed a Petition for Reinstatement of Compensation Agreement.

[ 4 Pa. Commw. Page 666]

The Referee, treating the Petition for Reinstatement as a Petition to Set Aside the Final Receipt, found in claimant's favor. Employer-appellant appealed. The Workmen's Compensation Board sustained the appeal. In doing so, it found the claimant had a partial disability but was not entitled to compensation since he had quit his job without justification and had, therefore, suffered no loss of earnings as a result of his disability. The Board was divided 2-1.

Claimant appealed that decision to the Common Pleas Court, Philadelphia County, and after carefully reviewing the record, Judge Spaeth reversed the Board and remanded the case for further consideration by it. The Board performed what it considered its duty under Judge Spaeth's decision and again, this time unanimously, found in favor of employer.

Claimant appealed the second time and Judge Spaeth again carefully reviewed the record and again remanded it to the Board for further consideration. This appeal followed.

A motion to quash was filed by claimant on the grounds that the decision of the Court of Common Pleas was interlocutory. However, claimant has not pressed this point in his argument. The motion to quash is dismissed. Rozanski v. Glen Alden Coal Company, 165 Pa. Superior Ct. 460, 69 A.2d 192 (1949).

On the merits, the issue that is here determinative is whether claimant had the burden of proving that his voluntarily leaving his employment on November 1, 1965, when he had worked from March 23, 1965, at his former position to the satisfaction of appellant, was the result of his injury on April 30, 1964. The Board, in its original opinion, found that the claimant had the burden and had failed to meet it. Judge Spaeth ...


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