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PEPSI-COLA BOTTLING COMPANY v. COMMONWEALTH PENNSYLVANIA (06/11/80)

decided: June 11, 1980.

PEPSI-COLA BOTTLING COMPANY, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, WORKMEN'S COMPENSATION APPEAL BOARD AND MICHAEL G. KALAFUT, RESPONDENTS. PEPSI-COLA BOTTLING COMPANY AND HOME INSURANCE COMPANY, PETITIONERS V. COMMONWEALTH OF PENNSYLVANIA, WORKMEN'S COMPENSATION APPEAL BOARD AND MICHAEL G. KALAFUT, RESPONDENTS



Appeals from the Orders of the Workmen's Compensation Appeal Board in cases of Michael G. Kalafut v. Pepsi-Cola Bottling Company, Nos. A-76293 and A-73845.

COUNSEL

Eugene F. Scanlon, Jr., Dickie, McCamey & Chilcote, for appellant, Home Insurance Company.

Roy F. Walters, Jr., Fried, Kane, Walters & Zuschlag, for appellant, Lumbermens Mutual Casualty Co.

Henry R. Beeson, for appellee, Kalafut.

Judges Rogers, Blatt and MacPhail, sitting as a panel of three. Opinion by Judge Rogers.

Author: Rogers

[ 52 Pa. Commw. Page 176]

Lumbermen's Mutual Casualty Co. and Home Insurance Company, both sometime insurers of Pepsi-Cola Bottling Company, have each appealed from an order of the Workmen's Compensation Appeal Board awarding benefits to Michael G. Kalafut, some at the hands of Lumbermen's and others of Home Insurance. We have consolidated the appeals for argument and disposition.

On March 24, 1975, Kalafut sustained an injury to his back in the course of his employment with Pepsi-Cola Bottling Company. Lumbermen's was Pepsi-Cola's insurer at the time of this injury and paid benefits to Kalafut under an agreement until May 6, 1975, when Kalafut returned to work. Kalafut executed a final receipt on May 30, 1975. On May 5, 1976, Kalafut again injured his back during his employment with Pepsi-Cola. At this time, Home Insurance was the insurer. In August 1976, Kalafut filed a claim petition for workmen's compensation benefits for his injury of May 5, 1976 and a reinstatement petition for benefits for his injury of March 24, 1975. The reinstatement petition was later amended so as to be a petition to set aside the final receipt executed May 30, 1975.

Hearings were held before a referee, at which Kalafut's testimony was taken and medical reports were admitted. The referee entered an order on August 9, 1977, setting aside the final receipt based on a finding that Kalafut retained a "residual disability" from his March 24, 1975 injury. However, the referee

[ 52 Pa. Commw. Page 177]

    suspended benefits assessable against Lumbermen's for Kalafut's March 24, 1975 injury as of May 6, 1976. The referee also upheld Kalafut's claim for his injury of May 5, 1976 and awarded benefits for total disability payable by Home Insurance.

Home Insurance appealed the referee's order to the Appeal Board which questioned whether there was sufficient competent evidence in the record to support a finding that Kalafut sustained a new injury on May 5, 1976, and which concluded that the referee properly set aside the final receipt because there was evidence that Kalafut was not fully recovered from the March 24, 1975 injury. The Board noted, however, that there was evidence in the record that Kalafut might be able to perform lighter work than his previous position required. The Appeal Board remanded the record to the referee for further consideration, with both sides to have the opportunity to present evidence and take testimony.

Before the issuance of the Appeal Board's order just mentioned, Home Insurance had filed a petition to terminate Kalafut's workmen's compensation benefits. The referee to which the matter was remanded treated this petition concurrently with her consideration of the remanded record. A hearing was held at which Kalafut, called by Lumbermen's as on cross-examination, again testified concerning his two injuries. The only other evidence was offered by Home Insurance and consisted of the deposition of one Dr. Mitchell, who stated that as of January 17, 1978, Kalafut was ...


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