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BUD SMAIL LINCOLN MERCURY AND UNIVERSAL UNDERWRITERS INSURANCE COMPANY v. COMMONWEALTH PENNSYLVANIA (06/11/81)

decided: June 11, 1981.

BUD SMAIL LINCOLN MERCURY AND UNIVERSAL UNDERWRITERS INSURANCE COMPANY, PETITIONERS
v.
COMMONWEALTH OF PENNSYLVANIA, WORKMEN'S COMPENSATION APPEAL BOARD AND THOMAS A. SIPES, RESPONDENTS. TRANSAMERICA INSURANCE COMPANY, INTERVENOR



Appeal from the Order of the Workmen's Compensation Appeal Board in case of Thomas A. Sipes v. Bud Smail Lincoln Mercury, No. A-74193.

COUNSEL

Francis E. Pipak, Jr., with him Fred C. Trenor and Mark Gordon, Meyer, Darragh, Buckler, Bebenek & Eck, for petitioners.

Joseph F. Grochmal, with him Roy F. Walters, Jr., Fried, Kane, Walters & Zuschlag, for intervenor.

No appearance for respondents.

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

Author: Macphail

[ 59 Pa. Commw. Page 639]

This is an appeal by Bud Smail Lincoln Mercury (Smail) and Universal Underwriters Insurance Company (Universal) from an order of the Workmen's Compensation Appeal Board (Board) affirming a referee's decision directing Universal to pay workmen's compensation benefits to Thomas A. Sipes (Sipes).

Sipes was employed as an automobile mechanic for Smail. On July 27, 1973, Sipes was injured when

[ 59 Pa. Commw. Page 640]

    an automobile engine on which he was working exploded, causing him to strike his back against a wall. As a result of this incident, Sipes sustained an injury to his lower back. He was paid compensation benefits by Transamerica Insurance Company (Transamerica), Smail's workmen's compensation insurer on July 27, 1973, from July 28, 1973 through November 1, 1973, when he returned to work for Smail. Sipes executed a final receipt with Transamerica on November 7, 1973.

On March 10, 1975, Sipes was bending over the fender of a car in the course of his employment at Smail's garage when he experienced severe back pain and was unable to stand upright. As a result of this incident he underwent surgery for removal of an L-5 disc protrusion. He returned to work on October 2, 1975. At the time of the second incident, Universal provided workmen's compensation coverage for Smail. Sipes filed a claim for workmen's compensation benefits against Smail and listed both Transamerica and Universal as insurance carriers.*fn1 Both companies denied liability.

There is no dispute that Sipes was disabled by a work-related injury on March 10, 1975. The only issue presented to the referee was whether what occurred on March 10, 1975 was a new injury for which Universal would be financially responsible or the recurrence of an old injury for which Transamerica would be financially ...


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