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BETH-ALLEN LADDER CO. v. COMMONWEALTH PENNSYLVANIA (08/01/80)

decided: August 1, 1980.

BETH-ALLEN LADDER CO., PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, WORKMEN'S COMPENSATION APPEAL BOARD AND WILLIAM F. MILLS, SR., RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in case of William F. Mills, Sr. v. Beth-Allen Ladder Company, No. A-74456.

COUNSEL

Thomas R. Bond, with him, Martin W. Bashoff, LaBrum and Doak, for petitioner.

Michael P. Shay, Sigmon & Ross, P.C., for respondent, William F. Mills, Sr.

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

Author: Crumlish

[ 53 Pa. Commw. Page 324]

All State Insurance Company (All State), insurance carrier for Beth-Allen Ladder Company (Beth-Allen), appeals an order of the Pennsylvania Workmen's Compensation Appeal Board (Board) holding that it is chargeable to pay compensation and attorneys' fees to William F. Mills, Sr. We reverse in part and remand.

[ 53 Pa. Commw. Page 325]

Mills was employed by Beth-Allen on January 21, 1976, when he sustained an injury to the lower back and groin while lifting a ladder in the course of his employment. Pursuant to a "notice of compensation payable," Mills received compensation at a rate of $144.93 per week for the period from January 26, 1976 to March 8, 1976 from All State. By award of the referee dated June 29, 1976, Beth-Allen and/or All State were ordered to reinstate payments effective April 12, 1976 for partial disability and to continue payment until such time as the disability changed or ceased within the terms of the Act. Interest and counsel fees were assessed against the defendants.

All State and Beth-Allen did not appeal the June 29, 1976 award and compensation was paid in accordance therewith from April 12, 1976 to December 31, 1976, inclusive.

On July 1, 1976, All State cancelled Beth-Allen's insurance coverage. The State Workmen's Insurance Fund (State Workmen's Fund) assumed liability coverage from July 2, 1976.

Mills, on December 7, 1976, filed a review petition, properly treated as a petition to modify, in which he alleged that on October 4, 1976, he experienced pain and a cracking sensation in his lower back as he lifted a ladder in the course of his employment; that he continued to experience this pain; and that, by October 18, 1976, his partial disability had increased to a temporary total disability. All State joined the State Workmen's Fund as a defendant because on the date of the alleged increase of disability it was the exclusive provider of Beth-Allen's workmen's compensation insurance.

The referee dismissed the modification petition and terminated benefits under the notice of compensation payable, finding:

13. . . . [T]hat the Claimant failed to establish that he was partially or totally disabled

[ 53 Pa. Commw. Page 326]

    on and after March 8, 1976 due to the occurrence of an occupational injury on January 21, 1976.

14. . . . [T]hat the Claimant failed to establish that he was totally disabled on and after October 18, 1976 due to an occupational injury occurring in early October, 1976.

15. Claimant failed to establish that treatments rendered by Dr. DeMartino on and after March 8, 1976 were related to an ...


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