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JOSEPH LANZAROTTA v. COMMONWEALTH PENNSYLVANIA (04/26/79)

decided: April 26, 1979.

JOSEPH LANZAROTTA, T.D.A. (VALLEY PRODUCE) AND FEDERAL INSURANCE COMPANY, PETITIONERS
v.
COMMONWEALTH OF PENNSYLVANIA, WORKMEN'S COMPENSATION APPEAL BOARD AND DICK BOEHM, RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in case of Dick Boehm v. Joseph Lanzarotta (Valley Produce), No. A-71893.

COUNSEL

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

Amid B. Coramenna, with him Alexander J. Pentecost, for respondents.

Judges Mencer, DiSalle and Craig, sitting as a panel of three. Opinion by Judge Mencer. Dissenting Opinion by Judge DiSalle.

Author: Mencer

[ 42 Pa. Commw. Page 285]

Joseph Lanzarotta, T.D.A. Valley Produce Company (Employer), appeals from a decision of the Workmen's Compensation Appeal Board (Board) dated July 27, 1977, which affirmed the referee's findings of fact and conclusions of law, as well as his award of total disability benefits for the period from May 22, 1974 to October 12, 1975 to Dick Boehm (Claimant) pursuant to Section 301(c)(1) of The Pennsylvania Workmen's Compensation Act (Act),*fn1 77 P.S. ยง 411(1).

Claimant had been employed as a meat cutter for over 15 years, the last one of which he was in the employ of Valley Produce. The referee found that as a result of Claimant's work activity on May 13, 1976,

[ 42 Pa. Commw. Page 286]

    he sustained an injury to his right shoulder and neck while performing his duties, which led to hospitalization for manipulation and eventual cervical fusion. The referee also found that Claimant did have pre-existing wear-and-tear changes in the lower cervical spine but that his employment as a butcher, which necessitated the vigorous use of his upper extremities, was an aggravating factor. The referee further found Claimant totally disabled from his work-related injury and therefore awarded benefits as provided in the Act.

On appeal to this Court from the Board's order, Employer makes the following contentions: (1) that Claimant did not suffer an "injury" within the meaning of the Act, and (2) Claimant failed to give proper notice to Employer that he had sustained an injury while in the course of his employment.

In this type of case, where the Board has affirmed an award of a referee granting benefits to a claimant, our scope of review is limited to a determination of whether there is substantial competent evidence in the record to support any necessary findings of fact and whether the Board and referee have committed an error of law. Workmen's Compensation Appeal Board v. Auto Express, Inc., 21 Pa. Commonwealth Ct. 559, 346 A.2d 829 (1975).

With regard to Employer's initial contention, Section 301(c)(1) of the Act provides that for an injury to be compensable, it must (1) arise in the course of ...


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