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GIGLIOTTI'S RESTAURANT AND PIZZERIA AND ALLSTATE INSURANCE COMPANY v. COMMONWEALTH PENNSYLVANIA (02/23/82)

decided: February 23, 1982.

GIGLIOTTI'S RESTAURANT AND PIZZERIA AND ALLSTATE INSURANCE COMPANY, PETITIONERS
v.
COMMONWEALTH OF PENNSYLVANIA, WORKMEN'S COMPENSATION APPEAL BOARD AND ROSE G. NICCOLAI, RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in the case of Rose G. Niccolai v. Gigliotti's Restaurant & Pizzeria, No. A-77621.

COUNSEL

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

Jack L. Bergstein, with him Daniel A. Kahle, Shire & Bergstein, for respondents.

President Judge Crumlish, Jr. and Judges Rogers and Craig, sitting as a panel of three. Opinion by President Judge Crumlish, Jr. Judge Palladino did not participate in the decision in this case.

Author: Crumlish

[ 64 Pa. Commw. Page 643]

Gigliotti's Restaurant and Pizzeria (employer) and Allstate Insurance Company (Insurer) appeal from a

[ 64 Pa. Commw. Page 644]

Workmen's Compensation Appeal Board benefits award to Rose G. Niccolai (employee). We affirm.

This is a burden of proof case. The facts follow: the employee filed a claim petition alleging that she had been injured in a fall at work on May 29, 1975. At the initial hearing, the employee testified that she continued to work and deferred seeking medical attention until consulting Dr. C. W. Vates, an orthopedic surgeon, on July 7, 1975. She then visited Dr. George F. Kowallis, her family physician, on July 12, 1975, and informed him of her injury. Based on Dr. Kowallis' medical report submitted at the hearing, the referee awarded compensation benefits. On appeal, however, the Board remanded for additional medical testimony.*fn1

Thereafter, Dr. Kowallis was deposed and testified that, when he had examined Niccolai on June 2, 1975, she had not mentioned the injury nor had there been any evidence of traumatic occurrence.*fn2 Subsequently, the employee amended her petition to reflect an injury date of June 5, 1975.*fn3

In support of this amendment, Niccolai testified at the rehearings (and such testimony was corroborated by her sister) that she had originally selected May 29, 1975 as the accident date on the basis of certain

[ 64 Pa. Commw. Page 645]

    representations by the Insurer's agent*fn4 and after being advised by the agent that the precise accident date was inconsequential. Further, Clem Gigliotti, Niccolai's employer, concluded that the accident occurred between June 15 and June 21, 1975.*fn5 Finally, the employee testified that, after reviewing Dr. Kowallis' ...


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