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ALUMINUM COMPANY AMERICA v. DANIEL E. THEIS (01/30/74)

decided: January 30, 1974.

ALUMINUM COMPANY OF AMERICA, APPELLANT,
v.
DANIEL E. THEIS, APPELLEE



Appeal from the Order of the Court of Common Pleas of Westmoreland County in case of Daniel E. Theis v. Aluminum Co. of America, No. 865 April Term, 1972.

COUNSEL

John B. Barbour, with him McVey and Barbour, for appellant.

Walter F. Mauersberg, with him John W. McIlvaine, for appellee.

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

Author: Crumlish

[ 11 Pa. Commw. Page 588]

This is an appeal by Aluminum Company of America (Alcoa) from a decision of the Court of Common Pleas of Westmoreland County which affirmed an adjudication of the Workmen's Compensation Appeal Board (Board) which had dismissed Alcoa's petition to terminate a supplemental compensation agreement for the total disability of Daniel E. Theis (Theis). We affirm.

The pertinent facts are that on December 12, 1966, Alcoa and Theis entered into a compensation agreement following an accident suffered by Theis in the regular course of his employment on March 15, 1960. Compensation was set at $42.50 per week, commencing December 7, 1966. In describing the accident, the compensation

[ 11 Pa. Commw. Page 589]

    agreement provided: "On December 10, 1959, Mr. Theis incurred a laceration to his left hand when it slipped off a wrench and struck a grinding wheel. On March 15, 1960, he complained of low back pain, traceable to the wrench accident. He was treated for back pain intermittently until he was hospitalized November 29, 1966. Herniated vertebral disc."

Theis returned to work on April 3, 1967 and executed a final receipt the next day acknowledging his return to work without disability. The parties entered into a supplemental compensation agreement on November 15, 1967, however, wherein it was agreed that Theis was "[r]ehospitalized for further surgery -- herniated vertebral disc" on October 10, 1967. This agreement provided that benefits for total disability be reinstated to October 30, 1967.

Alcoa filed the instant termination petition on February 2, 1970, claiming that Theis' continuing disability had ceased to be work related. Two hearings were held by the Referee on this petition in 1971. At the first, the only medical witness, Dr. Reese Owens, testified that he had performed surgery on Theis in 1967 consisting of a laminectomy, decompression, and excision of degenerative disc at L4 and 5, which confirmed his diagnosis of spinal stenosis brought on by arthritic changes of a hypertrophic nature. From his examination and operative findings, Dr. Owens was of the opinion that Theis' back condition was no longer related to the industrial accident he suffered in 1959 or 1960, but rather was of an arthritic nature coupled with Theis' weight and posture problems. At the second hearing, Theis entered the report of a doctor who treated him in 1966, which stated that Theis injured his back in 1960, and the parties hereto stipulated that Theis is now totally disabled as a result of his back condition.

The Referee denied the termination petition on July 29, 1971, finding that Alcoa ...


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