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CONNOLLY v. CAMPBELL (03/07/73)

decided: March 7, 1973.

CONNOLLY, ET AL.
v.
CAMPBELL, ET AL.



Appeal from the Order of the Workmen's Compensation Appeal Board in case of Thomas J. Campbell and Bituminous Casualty Corp., Insurance Carrier, v. Mary Connolly, No. A-65205.

COUNSEL

Lowell A. Reed, Jr., with him Rawle & Henderson, for appellants.

Thomas F. McDevitt, for appellee.

Judges Crumlish, Jr., Mencer and Blatt, sitting as a panel of three. Opinion by Judge Crumlish, Jr.

Author: Crumlish

[ 8 Pa. Commw. Page 100]

This is an appeal from an order of the Workmen's Compensation Appeal Board which refused appellants' petition for termination of compensation.

In March of 1963, appellants and the claimant, a bartender, entered into agreement in compensation for total disability at the weekly rate of Forty-Seven Dollars and Fifty Cents ($47.50) after Campbell sustained a back injury while lifting a case of beer in October of 1962.

In June of 1967, appellants filed a petition to terminate the compensation agreement alleging that claimant's loss of earnings had ended in January of 1966.

[ 8 Pa. Commw. Page 101]

At a hearing on May 19, 1971 counsel for appellants moved to amend the termination petition to have it alternatively considered as a petition to set aside the agreement under Section 413 of the Workmen's Compensation Act*fn1 contending that claimant had never in fact sustained an accidental injury in October of 1962.

At a hearing on June 6, 1971 counsel for appellants again moved to amend the original petition adding as an alternative count the contention that appellants were entitled to a suspension or partial modification of the compensation agreement because Campbell was able to work as a bartender and that this kind of work was available to him as of September 13, 1968.

Appellants' contention that claimant's disability has changed is based on (1) medical testimony that the disability has changed, and (2) the allegation claimant now earns as much as he did prior to 1962 because he now manages and enjoys the profits of that business.

Claimant was working as a bartender for Mary Connolly when the alleged injury occurred. In December of 1964, Connolly died and claimant bought and operated the business. In addition to the medical evidence presented, there was testimony adduced at the hearings which revealed that he was in the bar four hours daily six days a week. While he was there, he performed none of the tasks of a bartender nor did he wait on customers nor did he prepare any food. His time was spent conversing with the patrons. He did drive his car to a state liquor store weekly to replenish the liquor stock but he did not personally carry the purchases. He often checked the cash receipts but this was also done by his wife. Claimant arranged for ...


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