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MCKINNEY MANUFACTURING CORP. v. STRAUB (05/24/73)

decided: May 24, 1973.

MCKINNEY MANUFACTURING CORP., ET AL.
v.
STRAUB, ET AL.



Appeal from the Order of the Workmen's Compensation Appeal Board in case of John W. Straub v. McKinney Manufacturing Company and Pennsylvania Manufacturers' Association Insurance Co., Insurance Carrier, No. A-65487.

COUNSEL

Henry R. Van Deusen, Jr., with him L. R. Van Deusen and Van Deusen & Van Deusen, for appellants.

John W. Straub, appellee, for himself.

President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Opinion by Judge Rogers.

Author: Rogers

[ 9 Pa. Commw. Page 80]

The McKinney Manufacturing Corporation and its insurance carrier, the Pennsylvania Manufacturers' Association Insurance Company, have appealed from an order of the Workmen's Compensation Appeal Board sustaining a referee's award of compensation to John W. Straub.

Straub injured his back on November 11, 1969 in the course of his employment as a production worker with McKinney. The parties entered into an agreement under which claimant was paid compensation for total disability from November 12, 1969 to December 2, 1969. Straub executed a final receipt on December 12, 1969, reciting his ability to return to work without any disability or loss of earning power; but on February 3, 1970 he filed a Petition To Set Aside The Final

[ 9 Pa. Commw. Page 81]

Receipt, alleging continued disability. The referee set aside the final receipt based upon his finding that the claimant was still totally disabled at the time it was executed. The referee further found that the claimant was totally disabled until February 2, 1970; that claimant's disability changed from total to 50 percent partial beginning February 3, 1970, and, that all disability ceased on March 23, 1970. He concluded, consistent with these findings, that the compensation agreement should be modified to provide for compensation for partial disability as of February 3, 1970, and terminated as of March 23, 1970.

By undisputed testimony at the several hearings it was established that the union of which the claimant was a member struck the employer's industrial plant on December 2, 1969 and that all production ceased on that day and did not resume until March 24, 1970; that the carrier's physician saw the claimant on December 2, 1969 and formed the opinion that the claimant was still disabled but could do light work; that the carrier's physician informed the employer's industrial nurse that the claimant could do light work; that the industrial nurse informed the industrial relations manager of this fact; that the claimant would have been offered light work at his usual pay, in accordance with an established policy of his employer, but was not offered such because there was no production activity at the plant due to the strike; and that the claimant was paid weekly the sum of $40 by his union in strike benefits.

The claimant consulted, among other physicians, a chiropractor who treated him from November 11, 1969 until May 8, 1970, and whose opinion it was that the claimant remained totally disabled until February 3, 1970; that after that date he was 50 percent disabled; and that all disability ceased on March 23, 1970.

The employer presents three questions for our consideration. None has merit: "1. Is ...


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