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JAMES J. BURTON v. COMMONWEALTH PENNSYLVANIA (07/10/81)

decided: July 10, 1981.

JAMES J. BURTON, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, WORKMEN'S COMPENSATION APPEAL BOARD, THE GAMBONE ORGANIZATION AND FROHMANDER & SMITH, RESPONDENTS. FROHMANDER AND SMITH AND ALLSTATE INSURANCE COMPANY, PETITIONERS V. COMMONWEALTH OF PENNSYLVANIA, WORKMEN'S COMPENSATION APPEAL BOARD, JAMES J. BURTON AND THE GAMBONE ORGANIZATION, RESPONDENTS



Appeals from the Order of the Workmen's Compensation Appeal Board in the case of James J. Burton v. The Gambone Corporation and Frohmander & Smith, No. A-75083 and in the case of James J. Burton v. Frohmander & Smith, No. A-77576.

COUNSEL

David L. Allebach, Jr., for petitioner, James J. Burton.

Martin J. Fallon, Jr., Swartz, Campbell & Detweiler, for respondent, Gambone Organization.

Albert E. Hart, Jr., with him James M. Marsh, for petitioners, Frohmander and Smith and Allstate Insurance Company.

Judges Blatt, Williams, Jr. and MacPhail, sitting as a panel of three. Opinion by Judge Williams, Jr. Judge Wilkinson, Jr. did not participate in the decision in this case.

Author: Williams

[ 60 Pa. Commw. Page 478]

Before us for review in this matter are two successive orders of the Workmen's Compensation Appeal Board (Board) concerning the award of total-disability benefits to James J. Burton (claimant). Each of the Board's orders brought a separate appeal to this Court, and we have consolidated those appeals for disposition. This combined matter had its genesis in two distinct petitions filed by claimant Burton to determine which of his two successive employers was liable for workmen's compensation because of a second adverse incident concerning the claimant's back. In the wake of that second incident, the claimant filed a petition to set aside a final receipt he had given his first employer, Frohmander & Smith (F & S), in whose service claimant had originally injured his back. The claimant also filed a claim petition against his succeeding employer, the Gambone Organization (Gambone), in whose service the second adverse incident occurred.

The first of the two appeals before us (No. 2942 C.D. 1978) was taken by claimant Burton from an order of the Board which reversed a referee's entry of an award on the claim petition against Gambone. In so ordering, the Board also remanded the case to the referee to reconsider the evidence as to the petition to set aside the final receipt given to F & S, which

[ 60 Pa. Commw. Page 479]

    petition the referee had dismissed in the course of imposing total liability on Gambone.

When the referee, on remand from the Board, reconsidered the evidence already of record, he entered a decision setting aside the final receipt that had been given to F & S, the first employer. When the Board affirmed that decision, F & S appealed further to this Court; and that appeal (No. 582 C.D. 1980) is the second of the two instantly before us.

As might appear from the above synopsis, the posture of this matter is slightly complex; thus it is important to detail the stages through which the matter passed en route to this Court.

In January 1974 claimant James J. Burton was employed by F & S as a carpenter, working in the erection of a three story apartment building. While so engaged, the claimant was required to pull loads of "two-by-sixes" from the ground up onto a balcony, using a hoist. On January 31, 1974, as he was pulling one of the loads, the claimant experienced severe and immediate low back pain. As a result he was unable to complete his work that day and left the job site. That same evening claimant consulted an orthopedist, Dr. Elliot Menkowitz; and, shortly thereafter, the claimant was admitted to a hospital where he underwent low-back surgery. That operation entailed removal of a disc at the L-4 level.

After the operation the claimant and F & S, through its insurance carrier, entered into a compensation agreement under which benefits were paid by the carrier from February 7, 1974. The claimant returned to work on May 20, 1974; and on May 30 he executed a final receipt relative to the January 1974 injury.

The claimant continued to work for F & S until November 1974, when he began employment with Gambone. On November 17, ...


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