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UNITED INDUSTRIAL MAINTENANCE AND WESTMORELAND CASUALTY COMPANY v. COMMONWEALTH PENNSYLVANIA (09/21/79)

decided: September 21, 1979.

UNITED INDUSTRIAL MAINTENANCE AND WESTMORELAND CASUALTY COMPANY, PETITIONERS
v.
COMMONWEALTH OF PENNSYLVANIA, WORKMEN'S COMPENSATION APPEAL BOARD AND DAVID W. KIMMICK, RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in case of David W. Kimmick v. United Industrial Maintenance, No. A-73332.

COUNSEL

H. Reginald Belden, with him Stewart, Belden, Sensenich & Herrington, for petitioners.

C. S. Fossee, with him Murovich, Reale and Fossee, for respondents.

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

Author: Crumlish

[ 46 Pa. Commw. Page 157]

Westmoreland Casualty Company (Westmoreland), insurance carrier for United Industrial Maintenance (United Industrial), appeals an order of the Workmen's Compensation Appeal Board (Board) that it is chargeable for payment of compensation to David W. Kimmick.

Kimmick was employed by United Industrial on October 27, 1972, when he sustained a left femural fracture, falling approximately 87 feet in a work-related accident. An intermedullary rod was surgically implanted in his leg. At the time of the accident, his employer's insurer, Rockwood Insurance Company (Rockwood) paid Kimmick $94.00 weekly compensation until March 25, 1973, when he returned to work. On December 5, 1973, he underwent surgery for the removal of the rod. Rockwood resumed compensation payments until Kimmick's return to work on January 20, 1974. On January 29 Kimmick, in another work-related accident, fractured his right ankle, and Rockwood paid him compensation until March 3, 1974. On March 4, 1974, Kimmick again returned to work as a general laborer and signed a final receipt of compensation.

Rockwood, on March 15, 1974, cancelled United Industrial's coverage and Westmoreland assumed liability coverage from March 16, 1974.

[ 46 Pa. Commw. Page 158]

In May, 1974, Kimmick sustained a ligamentous tear and other injuries to his left knee when his knee "popped" as he jumped several feet from a tugger hoist.*fn1 He continued to work without wage loss though with considerable pain until August 6, 1974, when his physician prescribed further surgery because of the severity of his knee problem. Thereafter he did not work until February 21, 1976, when he began to work part-time as an apprentice beautician.

The referee, after hearing two orthopedic surgeons testify, attributed Kimmick's periods of total disability to his 1972 fall of 87 feet, granted his petition to set aside the final receipt,*fn2 and held Rockwood exclusively liable for all payments of compensation to Kimmick.*fn3

Rockwood appealed to the Board which purported to adopt the referee's factual findings but held that the findings ineluctably led to the conclusion that the May, 1974 incident resulted in an aggravation of a pre-existing condition, a separate compensable injury under Section 301(c) of The Pennsylvania Workmen's Compensation Act (Act),*fn4 77 P.S. ยง 411. Accordingly, the Board concluded that Westmoreland, as ...


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