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BEAVER SUPERMARKET AND U.S. FIDELITY & GUARANTY COMPANY v. COMMONWEALTH PENNSYLVANIA (02/06/81)

decided: February 6, 1981.

BEAVER SUPERMARKET AND U.S. FIDELITY & GUARANTY COMPANY, PETITIONERS
v.
COMMONWEALTH OF PENNSYLVANIA, WORKMEN'S COMPENSATION APPEAL BOARD AND JAMES E. SHELDRAKE, RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in the case of James E. Sheldrake v. Beaver Supermarket, No. A-76859.

COUNSEL

Raymond F. Keisling, Will & Keisling, for petitioners.

Amiel B. Caramanna, Jr., with him Alexander J. Pentecost, for respondents.

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

Author: Macphail

[ 56 Pa. Commw. Page 506]

Beaver Supermarket (Employer) and U.S. Fidelity & Guaranty Company have filed this appeal from the decision by the Workmen's Compensation Appeal Board (Board) which affirmed the referee's decision granting benefits to James E. Sheldrake (Claimant) pursuant to The Pennsylvania Workmen's Compensation Act*fn1 for total disability arising out of and in the course of his employment. We affirm.

[ 56 Pa. Commw. Page 507]

Claimant worked for the Employer, as a butcher, from 1946 to 1977. On September 18, 1969, he injured his back at work; the Employer's insurance covered the cost of treatment and no loss of earnings occurred. The record shows, however, that Claimant had recurring pain in his back and experienced acute symptomology in or about August of 1974. He was treated by Dr. Walter J. Helsing. The Employer's insurance carrier paid all medical expenses. Again, however, the Claimant sustained no loss of earnings. In November of 1976, Dr. Helsing recommended that Claimant be placed in a body cast; this treatment was used until December 17, 1976. Claimant continued to work while in the body cast, thus sustaining no loss of earnings. The body cast alleviated Claimant's symptoms, but upon its removal, the pain returned. Because the body cast had relieved Claimant's pain, Dr. Helsing recommended a spinal fusion. Claimant testified that he had discussed his back problems with his supervisor on several occasions during the period from 1969 to 1977 and specifically informed him on March 19, 1977 that surgery had been recommended. Claimant underwent surgery on or about April 8, 1977 and has been permanently disabled from performing his job as a butcher as a result thereof. The Employer's insurance carrier has paid for all medical costs incurred by Claimant on account of his continuing back problems since 1969 including the spinal fusion performed in 1977.

Three issues are presented for our review: 1) whether the referee's finding that Claimant has established entitlement to benefits is supported by substantial evidence; 2) whether Claimant gave timely notice of his injury to his Employer; and 3) whether the referee properly awarded counsel fees to Claimant.

Dr. Helsing, Claimant's treating physician, testified that he first examined Claimant in August of 1974 and that this examination revealed evidence of a

[ 56 Pa. Commw. Page 508]

    degenerative discogenic syndrome that was continually aggravated by Claimant's work activity. Dr. Helsing treated Claimant conservatively, but concluded, in 1977, that surgery was necessary to relieve the pain. Dr. Helsing's testimony unequivocally linked Claimant's back problems to his work.

Dr. Robert F. Botkin examined the Claimant at the request of the Employer. His testimony did not contradict ...


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