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TOPPS CHEWING GUM v. COMMONWEALTH PENNSYLVANIA (02/02/81)

decided: February 2, 1981.

TOPPS CHEWING GUM, INC. AND LIBERTY MUTUAL INSURANCE COMPANY, PETITIONERS
v.
COMMONWEALTH OF PENNSYLVANIA, WORKMEN'S COMPENSATION APPEAL BOARD, THERESA ZUREK AND AMERICAN MOTORIST INSURANCE COMPANY, RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in the case of Theresa Zurek v. Topps Chewing Gum, Inc., No. A-76888.

COUNSEL

William C. McGovern, with him Joseph R. Thompson, for petitioners.

Joseph P. Lenahan, with him Robert J. Nolan, for respondent, American Motorists Insurance Company.

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

Author: Macphail

[ 56 Pa. Commw. Page 426]

Topps Chewing Gum, Inc. (Employer) and Liberty Mutual Insurance Company (Liberty Mutual) have filed this appeal from the decision and order of the Workmen's Compensation Appeal Board (Board) affirming the decision of the referee granting benefits to Theresa Zurek (Claimant) for recurrence of a compensable injury suffered by her in February of 1975.

Claimant filed a claim petition on March 6, 1978 seeking compensation for an injury to her back that allegedly occurred on January 10, 1978 during the course of her employment. The record shows that Claimant had injured her back in February of 1975. Between the time of that injury and the incident on January 10, 1978, the Employer changed insurance carriers. The Employer's present carrier, American Motorists Insurance Company (American), denies liability for Claimant's present disability because, it contends, this disability is not the result of a new injury on January 10, 1978, but is the result of the accident of February 1975 for which Liberty Mutual remains liable.

Referee Piccone found that Claimant's injury on January 10, 1978 was a reinjury or recurrence of the injury of February 1975. Liberty Mutual was ordered to pay benefits.

Both Claimant and Liberty Mutual filed appeals to the Board from the referee's findings contending that the finding of reinjury was not supported by substantial competent evidence. Claimant also sought a rehearing before the referee for presentation of further medical testimony which had not been available at the time of the referee's hearing. The Board denied the requested remand and affirmed the referee's decision. Claimant has not appealed from the Board's decision.

[ 56 Pa. Commw. Page 427]

Three issues are presented for our review: 1) whether the finding that Claimant's disability is causally connected to the injury of 1975 is supported by substantial evidence; 2) whether the Board erred in denying the requested remand; and 3) whether the rate of compensation set by the referee is in error.

Claimant injured her back on February 12, 1975 when she slipped and fell in the Employer's parking lot. She was treated by Dr. Scott Martin and, in or about July of 1976, underwent surgery to relieve pressure on a nerve in her back. She returned to work in September of 1976. She was paid compensation benefits by Liberty Mutual pursuant to a compensation agreement and signed a suspension agreement upon her return to work in September of 1976.

On January 10, 1978, Claimant attempted, during the course of her employment, to lift a box weighing approximately 35-40 lbs. She experienced sharp pain and extreme stiffness in her back. The pain subsided and Claimant continued to work for a number of weeks, but in a lighter job. The pain ...


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