Appeal from the Order of the Workmen's Compensation Appeal Board in case of Walter J. Dzwileski v. Bechtel Power Corporation, Grosek & Sons, M. A. Hospador Steel Erectors and Walsh Steel Service Co., No. A-77163.
Ralph J. Johnston, Jr., with him James P. Harris, Jr., Harris & Johnston, for petitioners.
James M. Scanlon, Scanlon, Howley & Scanlon, with him Theodore Krohn, Krohn & Hoegen, for respondents.
Judges Wilkinson, Jr., Blatt and Williams, Jr., sitting as a panel of three. Opinion by Judge Williams, Jr.
[ 57 Pa. Commw. Page 564]
This rather convoluted case comes before this Court on an appeal by one employer from a decision of the Workmen's Compensation Appeal Board (Board), which reversed a referee's determination that the appellant before this Court should not be liable for payment of benefits to the claimant, and that the employer at the time of a later injury should be held responsible for the compensation. We sustain the appeal, and reverse the order of the Board.
Claimant was injured in January, 1975, pursuant to which he and his employer at that time, Bechtel Power Corporation (Bechtel), entered into a Notice of Compensation Payable, followed by a final receipt. Approximately fourteen months later, Bechtel laid claimant off. After working briefly for two different companies,*fn1 he became employed on May 25, 1976, with M. A. Hospador Steel Erectors (Hospador). The referee found that on or about June 2, 1976, claimant felt a sharp pain in his back as he was assembling shaker shutes, an activity which involved heavy lifting.*fn2
On June 30, 1976, claimant filed a petition to set aside the final receipt. Bechtel filed a Petition to Join Additional Defendants on October 7, joining all three employers for whom claimant had worked between the date Bechtel had laid him off (April 22), and the date of the alleged new injury (June 2). Six days after filing the Petition, Bechtel and the claimant executed a Supplemental Agreement which stated that "Claimant returned to work 2-18-75 and became redisabled of his injury (1-13-75)."
On December 28, 1976, the referee ordered the file returned to the Bureau of Occupational Injury and Disease Compensation (Bureau), since the claimant
[ 57 Pa. Commw. Page 565]
and Bechtel had entered into the said Supplemental Agreement of October 13. Three months after this order, Bechtel petitioned to review the Supplemental Agreement, alleging that one or all of the interim employers were responsible for the payment of benefits.
After taking testimony on this petition, the referee found that "the claimant's injury on or about June 2, 1976 . . . was a separate trauma and constituted an aggravation of a pre-existing condition." He concluded that Hospador was responsible for all compensation due claimant, and dismissed the petition as to the other two intervening employers.
Hospador appealed to the Board, alleging that the referee's conclusion that claimant suffered a new injury in June, 1976, was an error of law, because it was unsupported by the evidence. The Board did not address this issue, holding instead that because the referee had not made two crucial findings, (1) whether proper notice was given to Hospador under Section 311 of The Pennsylvania Workmen's Compensation Act (Act),*fn3 and (2) what was incorrect*fn4 about the Supplemental Agreement of October 13, "the defendant-employer has failed to meet its burden of proof on its petition." ...