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AMERICAN CHAIN AND CABLE COMPANY v. COMMONWEALTH PENNSYLVANIA (09/18/78)

decided: September 18, 1978.

AMERICAN CHAIN AND CABLE COMPANY, PAGE STEEL & WIRE DIVISION AND AMERICAN MUTUAL LIABILITY INSURANCE COMPANY, INSURANCE CARRIER, PETITIONERS
v.
COMMONWEALTH OF PENNSYLVANIA, WORKMEN'S COMPENSATION APPEAL BOARD AND ALEX KUNDRICK, RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in case of Alex Kundrick v. American Chain & Cable Company, No. A-71329.

COUNSEL

Raymond F. Keisling, with him Will & Keisling, for petitioners.

Leonard P. Kane, Jr., with him James N. Deifenderfer, for respondents.

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

Author: Mencer

[ 37 Pa. Commw. Page 576]

The claimant in this case, Alex Kundrick, was employed by American Chain and Cable Company (employer) as a "hand trucker," a position which involved heavy lifting. On September 21, 1970, the claimant injured his back while in the course of his employment and, as a result, was absent from work until October 12, 1970. On October 5, 1970, the claimant and the employer entered into an agreement for the payment of total disability benefits. On October 9, 1970, claimant signed a final receipt and, on October 12, 1970, he returned to his former position with no loss of pay. However, the work involved was substantially lighter due to the use of a new mechanical truck rather than a hand truck, and claimant no longer had to do any heavy lifting. Claimant continued to work in this position until the employer's plant closed permanently on November 30, 1972. Claimant was unemployed until November 26, 1973, when he obtained a job as a security guard, a position which involved no physical labor.

On April 24, 1972, claimant filed a petition for reinstatement of compensation agreement, which was subsequently amended to be a petition to set aside final receipt. Therein he alleged that he suffered residual back difficulties from the September 21, 1970 accident, which prevented him from obtaining employment and for which he required additional medical care.*fn1 The employer denied the existence of any

[ 37 Pa. Commw. Page 577]

    residual disability,*fn2 and the matter was heard before a referee on July 18, 1974. The claimant testified that ever since the 1970 accident he had periodically suffered back trouble which precluded him from doing heavy work. Claimant submitted the report of Dr. Norman Minde, dated August 31, 1973, wherein Dr. Minde opined that claimant was suffering from a chronic lumbar sprain which prevented the claimant from doing heavy work.*fn3

On the basis of this evidence, the referee found that, at the time claimant signed the final receipt, all of the claimant's disability had not in fact terminated and that the final receipt should therefore be set aside, pursuant to Section 434 of The Pennsylvania Workmen's Compensation Act, Act of June 2, 1915, P.L. 736, as amended, 77 P.S. ยง 1001. The referee further found that claimant was currently suffering from back trouble related to the 1970 accident and awarded total disability benefits between the time the plant closed and the time the claimant secured a new job and partial disability benefits thereafter.

On appeal, the Workmen's Compensation Appeal Board (Board) remanded the case to the referee because

[ 37 Pa. Commw. Page 578]

Dr. Norman Minde's report failed to indicate any relationship between claimant's current problems and the 1970 accident. Upon remand, the claimant was examined by Dr. Eric Minde, who concluded, on the basis of his examination and his review of claimant's medical records, that claimant's current problems were the result of the 1970 accident. Dr. Eric Minde further opined that these difficulties would prevent the claimant from returning to heavy work such as that in which he was engaged when injured. The employer ...


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