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WALTER F. FURMANEK v. COMMONWEALTH PENNSYLVANIA (02/02/82)

decided: February 2, 1982.

WALTER F. FURMANEK, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, WORKMEN'S COMPENSATION APPEAL BOARD AND CONSOLIDATION COAL COMPANY, RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in the case of Walter F. Furmanek v. Consolidation Coal Company, No. A-77976.

COUNSEL

Ronald I. Zero, with him J. Scott Leckie, for petitioner.

Thomas C. Reed, with him R. Henry Moore, Rose, Schmidt, Dixon, Hasley, Whyte & Hardesty, for respondent, Consolidation Coal Company.

Judges Mencer, Williams, Jr. and Palladino, sitting as a panel of three. Opinion by Judge Mencer. This decision was reached prior to the expiration of the term of office of Judge Palladino.

Author: Mencer

[ 64 Pa. Commw. Page 367]

This is an appeal by Walter F. Furmanek (claimant) from an order of the Workmen's Compensation

[ 64 Pa. Commw. Page 368]

Appeal Board (Board) which affirmed a referee's decision dismissing his claim petition and disallowing workmen's compensation benefits. We vacate and remand.

On April 30, 1974, the claimant suffered an injury to his right knee in the course of his employment with the Consolidation Coal Company (employer). As a result of that injury, a notice of compensation payable was executed by the employer for total disability. Thereafter, the claimant received weekly compensation payments of $106 from May 8, 1974 until January 18, 1976, when he returned to work. Shortly after the claimant returned to work, on January 30, 1976, he again suffered an injury to his right knee but continued to perform his work duties.

After the claimant had suffered the injury of January 30, 1976, he entered into a supplemental agreement, dated February 17, 1976, suspending his compensation payments because of his return to work. The agreement also recited that the claimant continued to suffer an undetermined amount of residual disability as a result of the April 30, 1974 injury. The claimant continued to work until April 25, 1977, when he informed the employer that he could no longer continue to work because of problems with his right knee.

On June 10, 1977, the claimant entered into a second supplemental agreement which provided for the reinstatement of his $106 weekly compensation payments based upon a recurrence of temporary total disability resulting from the injury of April 30, 1974. In September 1978, the claimant filed a petition to modify the second supplemental agreement, alleging that he suffered a new and separate injury on January 30, 1976 rather than a recurrence of the April 30, 1974 injury. After a hearing, a referee dismissed the petition, on November 7, 1978, concluding that the claimant should file a new claim petition to have his claim properly

[ 64 Pa. Commw. Page 369]

    adjudicated. In response to that decision, the claimant filed a claim petition, on November 17, 1978, alleging a new and separate knee injury as of January 30, 1976. That claim petition was assigned to the same referee who, ...


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