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WORKMEN'S COMPENSATION APPEAL BOARD COMMONWEALTH PENNSYLVANIA AND NATIONAL CAN CORPORATION v. PATRICIA KELLER (12/01/76)

decided: December 1, 1976.

WORKMEN'S COMPENSATION APPEAL BOARD OF THE COMMONWEALTH OF PENNSYLVANIA AND NATIONAL CAN CORPORATION
v.
PATRICIA KELLER, APPELLANT. WORKMEN'S COMPENSATION APPEAL BOARD OF THE COMMONWEALTH OF PENNSYLVANIA AND PATRICIA KELLER V. NATIONAL CAN CORPORATION AND ROYAL-GLOBE INSURANCE COMPANIES, APPELLANTS



Appeal from the Order of the Workmen's Compensation Appeal Board in case of Patricia Keller v. National Can Corporation, No. A-69677.

COUNSEL

Roland J. Artigues, with him Galfand, Berger, Senesky, Lurie and March, for Keller.

Lowell A. Reed, Jr., with him John J. McAuliffe, Jr.; Wojdak & McAuliffe; Peter J. Weber ; and Rawle & Henderson, for Gallagher-Bassett Insurance Service Co., Royal-Globe Insurance Companies, and National Can Corporation.

President Judge Bowman and Judges Crumlish, Jr., and Wilkinson, Jr., sitting as a panel of three. Opinion by President Judge Bowman.

Author: Bowman

[ 27 Pa. Commw. Page 264]

On December 8, 1971, while employed by National Can Corporation (National), Patricia Keller (claimant)

[ 27 Pa. Commw. Page 265]

    suffered a back injury for which workmen's compensation benefits for total disability were paid pursuant to a compensation agreement dated February 23, 1972. At that time, National's workmen's compensation liability insurer was Royal-Globe Insurance Companies (Royal-Globe).

On October 29, 1973, claimant returned to work at National at the same position, but with an increase in salary. Claimant worked for a period of four and one-half days, her testimony indicating that she suffered increasing back pains each day until forced to leave on the fifth day, November 3, 1973, in the middle of her shift.

As a product of these events, National-Royal-Globe on November 7, 1973, filed a termination petition asserting claimant's loss of earning power ceased when claimant returned to work on October 29, 1973, at National to the same or similar work at higher wages. On November 12, 1973, claimant filed a claim petition for compensation alleging a new compensable injury on November 1, 1973, the third day of her return to work. These proceedings were consolidated for hearing before the referee. It is not clear from the record or the briefs whether National was a self-insurer at this time. It was either self-insured or insured by Gallagher-Bassett Insurance Service, a point we need not reach in light of our decision in these consolidated appeals.

In separate determinations rendered on January 8, 1975, the referee concluded that claimant's total disability status had recurred on November 3, 1973, and she did not suffer a new injury. He, therefore, dismissed National-Royal-Globe's termination petition and claimant's claim petition.*fn1 On appeal to the

[ 27 Pa. Commw. Page 266]

Board, the referee's determinations were affirmed. Hence these appeals. National-Royal-Globe are appellants to No. 1322 C.D. 1975 and claimant is appellant to No. 1293 C.D. 1975. Gallagher-Bassett Insurance Service filed briefs and appeared at ...


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