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R.H. JOHNSON CONSTRUCTION COMPANY AND BITUMINOUS CASUALTY INSURANCE COMPANY v. COMMONWEALTH PENNSYLVANIA (05/10/78)

decided: May 10, 1978.

R.H. JOHNSON CONSTRUCTION COMPANY AND BITUMINOUS CASUALTY INSURANCE COMPANY, PETITIONERS
v.
COMMONWEALTH OF PENNSYLVANIA, WORKMEN'S COMPENSATION APPEAL BOARD, GAETANO DEPIANO AND VIGILANT INSURANCE COMPANY, RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in case of Gaetano DePiano v. R.H. Johnson Construction Company, No. A-71897.

COUNSEL

William G. Adamson, with him Rawle & Henderson, and, of counsel, Lowell A. Reed, Jr., for petitioners.

Charles S. Katz, Jr. and Robert J. Shenkin, with them Swartz, Campbell & Detweiler; MacElree, Harvey, Gallagher & Kean, Ltd., and James N. Diefenderfer, for respondents.

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

Author: Disalle

[ 35 Pa. Commw. Page 339]

This case comes before this Court upon a petition for review of an order of the Workmen's Compensation Appeal Board (Board). The order affirms a referee's decision setting aside an executed final receipt of Gaetano DePiano (Claimant).

The Claimant sustained a back injury on September 4, 1973, while working for R.H. Johnson Construction Co. (Employer). Following that incident, Claimant was paid compensation by Bituminous Casualty Insurance Co. (Bituminous), the carrier for the employer. Claimant executed a final receipt on January 16, 1974.

The Claimant returned to work with the same employer and allegedly sustained a second industrial injury on August 20, 1974. On that date, Vigilant Insurance Co. (Vigilant) was the workmen's compensation carrier for the Employer.

[ 35 Pa. Commw. Page 340]

Claimant then filed a petition to set aside the final receipt he had signed with respect to the first injury. This petition was contested by the Employer and Bituminous. Claimant also filed a petition for compensation for the alleged second injury and this petition was defended by the Employer and Vigilant. On the petition to set aside the final receipt, the referee found in favor of the Claimant and reinstated compensation as of August 20, 1974. On the petition for compensation for the second injury, the referee dismissed as to the Employer and Vigilant, holding specifically that Claimant had not sustained a new injury on August 20, 1974. Bituminous appealed the referee's decision in favor of the Claimant on the petition to set aside the final receipt. Claimant appealed from the adverse ruling on his petition for compensation against Vigilant and the Employer.

The Board wrote one opinion with respect to both petitions. The Board sustained the referee's decision with respect to the setting aside of the final receipt, but named Vigilant instead of Bituminous on the caption of its opinion. The Board did not discuss the referee's decision dismissing the petition for compensation for the alleged second injury.

Bituminous and the Employer filed a petition for review from the Board's adverse ruling. Vigilant filed a motion to quash the appeal as to it, contending that no petition for review had been filed in the case denying Claimant's petition for compensation. The Claimant contends that the Board did not pass upon his appeal of the referee's dismissal of his petition for compensation.

After a careful reading of the entire record, and more particularly the Board's decision, we can understand the reason for the confusion as to whether or not the Board considered both of the referee's ...


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