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WORKMEN'S COMPENSATION APPEAL BOARD COMMONWEALTH PENNSYLVANIA AND WILSON E. SCHWALM v. MORGAN & HARNER COAL COMPANY AND PENNSYLVANIA NATIONAL MUTUAL CASUALTY INSURANCE COMPANY (01/30/76)

decided: January 30, 1976.

WORKMEN'S COMPENSATION APPEAL BOARD OF THE COMMONWEALTH OF PENNSYLVANIA AND WILSON E. SCHWALM
v.
MORGAN & HARNER COAL COMPANY AND PENNSYLVANIA NATIONAL MUTUAL CASUALTY INSURANCE COMPANY, APPELLANTS



Appeal from the Order of the Workmen's Compensation Appeal Board in case of Wilson E. Schwalm v. Morgan & Harner Coal Company and Pennsylvania National Mutual Insurance Company, No. A-69711.

COUNSEL

W. E. Shissler, with him, of counsel, Nauman, Smith, Shissler & Hall, for appellants.

Thomas B. Rutter, with him Bashore & Lindsay, and James N. Diefenderfer, for appellees.

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

Author: Rogers

[ 23 Pa. Commw. Page 148]

This is the appeal of an employer from a decision and order of the Workmen's Compensation Appeal Board made May 22, 1975, affirming a referee's dismissal of its petition to terminate an agreement for benefits for total disability and ordering continuance of such benefits to a workman under the Workmen's Compensation Act.*fn1 The

[ 23 Pa. Commw. Page 149]

Appeal Board by the same order suspended the payment of benefits to the same workman under the Occupational Disease Act*fn2 awarded by a referee on September 20, 1974.

Wilson E. Schwalm suffered a compensable injury on February 8, 1960, while employed by Morgan & Harner Coal Company (Morgan) as a rock picker when he slipped and fell while removing a rock from a conveyor belt. A compensation agreement was entered into between Schwalm and Morgan's insurance carrier for total disability.

On October 9, 1966, Morgan filed its petition to terminate the agreement. Under the provisions of the Workmen's Compensation Act effective at the time, Schwalm's compensation was suspended pending final disposition of the petition. For reasons not established in the record, no hearing was scheduled in this matter until November 26, 1974.

On June 18, 1973, Schwalm filed a claim under the Occupational Disease Act and was, as we have stated, awarded benefits for total disability on September 20, 1974.

At the November 26, 1974 hearing on the petition to terminate the agreement, Schwalm's medical expert testified to his opinion that the cause of Schwalm's disability was the injury of February 8, 1960. The employer adduced medical evidence to the contrary. The referee found as a fact that Schwalm remained totally disabled as a result of the injury of February 8, 1960, and ordered the continuance of the appropriate benefits for total disability under the Workmen's Compensation Act. Morgan appealed to the Workmen's Compensation Appeal Board, saying that the referee ...


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