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D & T BROOKS v. COMMONWEALTH PENNSYLVANIA (10/23/78)

decided: October 23, 1978.

D & T BROOKS, INC. AND LIBERTY MUTUAL INSURANCE COMPANY, PETITIONERS
v.
COMMONWEALTH OF PENNSYLVANIA, WORKMEN'S COMPENSATION APPEAL BOARD AND CARL C. KNIGHT, RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in case of Carl C. Knight v. D & T Brooks, Inc., No. A-72288.

COUNSEL

Thomas J. Ferris, for petitioners.

J. Frank Kelker, with him Kelker and Kelker, and James N. Diefenderfer, for respondents.

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

Author: Wilkinson

[ 38 Pa. Commw. Page 224]

This is an appeal by the employer and its insurance carrier (petitioners) from an affirmance by the Workmen's Compensation Appeal Board (Board) of an order of the referee reinstating the compensation agreement between the petitioners and respondent (claimant).*fn1 We affirm.

The instant petition stems from a compensable accident which occurred on January 13, 1966.*fn2 The original compensation agreement dated January 31, 1966, was subsequently modified by two supplemental agreements, the first dated December 19, 1966 and the second dated March 15, 1968, which suspended total disability compensation for an aggregate period of approximately 34 weeks representing the time claimant returned to work with no loss of earning power. On May 23, 1968, claimant filed a reinstatement petition and on October 25, 1968, pursuant to a stipulation of facts by the parties, the referee ordered the agreement reinstated, modified to reflect a partial disability, and

[ 38 Pa. Commw. Page 225]

    ordered compensation payable for a period of 350 weeks commencing April 2, 1968. This order was modified by a third supplemental agreement dated December 6, 1968, which suspended payments as of November 27, 1968 and a fourth supplemental agreement dated May 11, 1971 which provided for reinstatement of total disability payments from November 21, 1970 to November 30, 1970 and suspending payments when claimant returned to work at no loss of earning power.*fn3 The last payment was made on June 2, 1971.

On August 15, 1974, claimant filed the reinstatement petition at issue here. Petitioners answered alleging claimant's petition was not timely filed and denying a causal connection between claimant's present injury and the compensable accident. The only evidence presented at the referee's hearing held on September 19, 1974 was that of the treating physician who testified claimant was totally disabled due to a back injury which he attributed to the January 13, 1966 injury. The physician further testified that he had treated claimant from May 1971 through November 1975 for heart, lung and back maladies; he opined that claimant was no longer disabled due to heart and lung conditions, but that claimant was disabled due to a continuing degenerative arthritic condition of his back which had existed prior to the January 13, 1966 injury and that this condition was aggravated by that injury

[ 38 Pa. Commw. Page 226]

    and disc surgery in June 1966 following a lumbo-sacral sprain which occurred in March 1966.

Based on this testimony, the referee found that claimant "became totally disabled as a result of low back pain and a collapsing left leg and that said disability resulted from his January 13, 1966 injuries and the subsequent disc and fusion surgery necessitated by said injury." The referee also found the petition was ...


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