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HOOVER'S SANI-DAIRY PRODUCTS AND LAUNDRY OWNERS MUTUAL LIABILITY INSURANCE ASSOCIATION v. COMMONWEALTH PENNSYLVANIA (05/21/82)

decided: May 21, 1982.

HOOVER'S SANI-DAIRY PRODUCTS AND LAUNDRY OWNERS MUTUAL LIABILITY INSURANCE ASSOCIATION, PETITIONERS
v.
COMMONWEALTH OF PENNSYLVANIA, WORKMEN'S COMPENSATION APPEAL BOARD AND FRANCIS NAGLE, RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in case of Francis Nagle v. Hoovers Sani-Dairy Products, No. A-79828.

COUNSEL

Denver E. Wharton, with him Robert J. Wharton, Kaminsky, Kelly, Wharton & Thomas, for petitioners.

Raymond J. Zadzilko, with him Arnold D. Smorto, Smorto & Persio, for respondents.

President Judge Crumlish and Judges Blatt and MacPhail, sitting as a panel of three. Opinion by Judge Blatt. Judge Mencer did not participate in the decision in this case.

Author: Blatt

[ 66 Pa. Commw. Page 575]

Hoover's Sani-Dairy Products (Hoover) and its insurer appeal a decision of the Workmen's Compensation Appeal Board (Board) which affirmed a referee's decision to reinstate benefits to claimant Francis Nagle.

The claimant injured his back while performing services for Hoover on March 20, 1978 and was paid benefits under a supplemental agreement entered into between the parties on May 23, 1978 for total disability. On December 4, 1978 he accepted a job*fn1 with Shaner Brothers Oil Company (Shaner Brothers) which required no heavy lifting and his benefits were then suspended. On March 5, 1979, however, he quit this job and soon thereafter filed the instant reinstatement petition alleging that he could not perform his duties at Shaner Brothers because of a recurrence of

[ 66 Pa. Commw. Page 576]

    his March 20, 1978 injury at Hoover's. Hoover, on the other hand, alleged that it was relieved of responsibility because a new injury had occurred while the claimant was employed by Shaner Brothers.*fn2 The referee, relying on the testimony of the claimant's physician, found that the claimant did in fact establish that he had a recurrence of the March 20, 1978 injury and accordingly granted benefits. The Board, without taking additional evidence, affirmed.

Where, as here, the party with the burden*fn3 of proof has prevailed below, our scope of review is limited to a determination of whether or not constitutional rights were violated, an error of law was committed, or the referee's findings of fact were unsupported by substantial evidence. United States Steel Corp. v. Workmen's Compensation Appeal Board, 52 Pa. Commonwealth Ct. 641, 416 A.2d 619 (1980).

Hoover argues that the necessary findings of fact regarding whether or not the claimant actually had a recurrence of his original injury were unsupported by substantial evidence. Our careful review of the record, however, discloses that the claimant's physician, who had also treated him for his original (March 20, 1978) injury, unequivocally*fn4 testified that he carefully examined

[ 66 Pa. Commw. Page 577]

    the claimant on April 9, 1979 and concluded that the claimant had had a recurrence of the symptoms he ...


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