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WILLIAM PFEIFFER v. GIBBONS BREWERY-LION (11/14/79)

decided: November 14, 1979.

WILLIAM PFEIFFER
v.
GIBBONS BREWERY-LION, INC., ZURICH INSURANCE COMPANY, LIBERTY MUTUAL INSURANCE COMPANY AND AMERICAN MUTUAL INSURANCE COMPANY. AMERICAN MUTUAL INSURANCE COMPANY, PETITIONER



Appeal from the Order of the Workmen's Compensation Appeal Board in case of William Pfeiffer v. Gibbons Brewery-Lion, Inc., No. A-75050.

COUNSEL

Lucille Marsh, with her Lawrence M. Ludwig, and Henkelman, Kreder, O'Connell and Brooks, for petitioner.

John R. Lenahan, with him Joseph P. Lenahan, and Lenahan, Dempsey, Murphy and Piazza, Joseph R. Thompson, John A. Fitzpatrick, John H. Appleton, and Nogi, O'Malley & Harris, P.C., for respondents.

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

Author: Disalle

[ 47 Pa. Commw. Page 312]

This is an appeal from an order of the Workmen's Compensation Appeal Board (Board) affirming an award of benefits to William Pfeiffer (Claimant), under The Pennsylvania Workmen's Compensation Act, Act of June 2, 1915, P.L. 736, as amended, 77 P.S. ยง 1 et seq. At issue is not Claimant's entitlement to benefits, but rather the identity of the insurance

[ 47 Pa. Commw. Page 313]

    company that must compensate him. We will affirm the determination of the Board and the referee that Petitioner American Mutual Insurance Company (AMI) is liable.

In September of 1972, Claimant, in the course of his employment with Gibbons Brewery-Lion, Inc. (Employer), suffered lower back and leg injuries when he fell while delivering beer. He received compensation from Zurich Insurance Company, the carrier at the time, until he eventually returned to work. Claimant reinjured himself in October of 1974, again experiencing pain in his lower back and left leg. He received benefits from October 22, 1974, to December 4, 1974, when he resumed employment with Employer.

The injury precipitating the present claim petition occurred on October 23, 1975. Claimant, while lifting himself out of a cellar window following a beer delivery, experienced extreme pain in the same general area as before. He has not worked since October 27, 1975, and it is undisputed that he is totally disabled.

Claimant filed a reinstatement petition on November 10, 1975, which was treated as an original claim petition. The referee found that this last injury constituted a new injury, not a recurrence of an old injury, and assessed liability against AMI, the carrier in 1975. The Board affirmed.

As is usually the situation in workmen's compensation cases, the evidence is conflicting. Two doctors for AMI testified that the 1972 incident was the fundamental cause of the 1975 injury. However, Dr. Anthony Zale, an orthopedic surgeon, diagnosed Claimant as suffering from a congenital defect in the lower back, and concluded that the 1972, 1974 and 1975 injuries all aggravated this pre-existing back ...


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