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CITY WILLIAMSPORT AND PENNSYLVANIA MANUFACTURER'S ASSOCIATION INSURANCE CO. v. COMMONWEALTH PENNSYLVANIA (12/30/80)

decided: December 30, 1980.

CITY OF WILLIAMSPORT AND PENNSYLVANIA MANUFACTURER'S ASSOCIATION INSURANCE CO., PETITIONERS
v.
COMMONWEALTH OF PENNSYLVANIA, WORKMEN'S COMPENSATION APPEAL BOARD, DWIGHT E. SCHMUCK AND GENERAL ACCIDENT GROUP, RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in case of Dwight E. Schmuck v. City of Williamsport, No. A-76264.

COUNSEL

Charles J. Tague, Jr., Hager and Roesgen, for petitioners.

John R. Bonner, Casale & Bonner, for respondents.

Judges Wilkinson, Jr., MacPhail and Williams, Jr., sitting as a panel of three. Opinion by Judge Williams, Jr.

Author: Williams

[ 55 Pa. Commw. Page 619]

This appeal arises from a dispute between two insurance companies as to which of them bears liability to pay workmen's compensation to Dwight E. Schmuck (claimant) after a second physically adverse incident in the course of his employment. The two companies involved are Pennsylvania Manufacturer's Association Insurance Company (PMA) and General Accident Group (General). Between the time of the first incident and the second, General had replaced PMA as insurance carrier for Schmuck's employer, the City of Williamsport.

The instant appeal is by PMA from an order of the Workmen's Compensation Appeal Board (Board) affirming a referee's determination that the claimant's second adverse incident was but a recurrence of an initial disability suffered during the time PMA was the insurance carrier for the City of Williamsport, and that, therefore, PMA remained liable for the compensation.

[ 55 Pa. Commw. Page 620]

The record establishes that claimant Schmuck was initially injured on February 14, 1977, while driving a bus for his employer. When the bus collided with another vehicle, the claimant was thrown against the steering wheel and sustained injury to his left shoulder. Schmuck was later diagnosed as having subcoracoid and subscapular bursitis in the left shoulder as a result of the accident. This condition produced persistent pain and persistent limitation of motion, such that the claimant had to undergo surgery to remove the bursa, medical procedures for a dislocated shoulder, and the implantation of staples to stabilize the shoulder joint.

For that injury PMA paid total disability compensation. On May 6, 1977, the claimant signed a Final Receipt closing out the injury of February, 1977. However, on May 9, 1977, a Supplemental Agreement was filed reciting that the claimant had returned to work on April 25, 1977, and that the disability recurred on April 27, 1977.

On March 20, 1978, Schmuck signed another Final Receipt, terminating the Supplemental Agreement. He returned to work that day; but the very next day he suffered an occurrence that created the point of contest in this case.

On March 21, 1978, Schmuck was again driving a bus, this time at the site of his employer's garage. As he was driving, the bus struck a bump, which caused the steering wheel to start spinning. When he grabbed the wheel he experienced severe pain in his left shoulder. The occurrence produced a new claim petition; and no party in this case is contesting Schmuck's right to disability compensation. What is contested is which of the two insurance companies must ...


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