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PITTSBURGH DES MOINES STEEL COMPANY AND LIBERTY MUTUAL INSURANCE COMPANY v. COMMONWEALTH PENNSYLVANIA (09/09/77)

decided: September 9, 1977.

PITTSBURGH DES MOINES STEEL COMPANY AND LIBERTY MUTUAL INSURANCE COMPANY, INSURANCE CARRIER, APPELLANTS
v.
COMMONWEALTH OF PENNSYLVANIA, WORKMEN'S COMPENSATION APPEAL BOARD AND EDWARD C. SCHAUB, APPELLEES



Appeal from the Order of the Workmen's Compensation Appeal Board in case of Edward C. Schaub v. Pittsburgh Des Moines Steel Corporation, No. A-70783.

COUNSEL

Thomas J. Ferris, with him Clem R. Kyle, for appellants.

Alexander J. Pentecost, with him James N. Diefenderfer, for appellees.

Judges Kramer, Mencer and Rogers, sitting as a panel of three. Judge Kramer did not participate in the decision. Opinion by Judge Mencer. Judge Kramer did not participate in the decision in this case.

Author: Mencer

[ 31 Pa. Commw. Page 532]

Pittsburgh Des Moines Steel Corporation (employer) appeals from an order of the Workmen's Compensation Appeal Board (Board) which affirmed a referee's reinstatement of benefits for total disability to Edward C. Schaub.

Schaub, who had a history of lower back problems, sustained an accidental injury to his lower back on March 13, 1968, while in the course of his employment as a welder. Thereafter, he and his employer of fifteen years entered into a compensation agreement which provided benefits for Schaub's temporary total disability. Although Schaub returned to work about two weeks later, his condition forced him to leave after four days. A supplemental agreement which reflected the recurrence of Schaub's accident-related total disability for the period of one day was executed by the parties.

Over the next three years, five more supplemental agreements were executed and approved. All referred to temporary total disability resulting from Schaub's 1968 accident. During this period, Schaub also suffered from other health problems unrelated to the 1968 accident.

On September 19, 1971, Schaub was again visited with the acute lower back pain with which he was now so familiar. He left work. On September 22, he saw his treating physician, Dr. John B. Blakley.*fn1 On September 27, Schaub returned to work, and the following day another supplemental agreement was executed

[ 31 Pa. Commw. Page 533]

    which stated that Schaub suffered a small residual disability not reflected in the loss of earning power and that compensation payments were therefore suspended until his accident-related disability reflected itself in loss of earning power.

Over the following years, Schaub's general health apparently took a turn for the worse. After several prolonged absences from work which were due to health problems unrelated to his 1968 accident, he returned to work on April 9, 1973. The same day the acute lower back pain returned. Schaub left work and was subsequently admitted to a hospital. There he was treated by Dr. Blakley. After discharge, his condition did not improve, and in early May of 1973 Dr. Blakley informed both Schaub and his employer that he would never return to his previous occupation.

Schaub filed a petition to reinstate the compensation which had been suspended by the September 28, 1971 supplemental agreement. A hearing was held by a referee, at which Schaub testified that his condition had worsened since 1971. A deposition of Dr. Blakley was also offered and admitted into evidence without objection. Therein Dr. Blakley testified that Schaub's present disability was the result of a herniated lumbar disc which was caused by ...


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