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HILTON HOTEL AND ALLSTATE INSURANCE COMPANY v. WORKMEN'S COMPENSATION APPEAL BOARD (VICTORIA BERTINI HALASKI) (12/29/82)

decided: December 29, 1982.

HILTON HOTEL AND ALLSTATE INSURANCE COMPANY, PETITIONERS
v.
WORKMEN'S COMPENSATION APPEAL BOARD (VICTORIA BERTINI HALASKI), RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in the case of Victoria Bertini Halaski v. Hilton Hotel, No. A-80704.

COUNSEL

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

Thomas P. Geer, for respondent, Victoria Bertini Halaski.

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

Author: Macphail

[ 70 Pa. Commw. Page 611]

This case is on appeal to this Court a second time. In Halaski v. Workmen's Compensation Appeal Board, 38 Pa. Commonwealth Ct. 607, 608-09, 394 A.2d 680, 680-81 (1978), we set forth the relevant facts as follows:

Mrs. Halaski was employed as a Pantry Girl by the Hilton Hotel in Pittsburgh, Pennsylvania. She received workmen's compensation benefits for the period from October 23, 1973 to April 18, 1975 as the result of a back injury suffered on October 15, 1973 in the course of her employment. She returned to work at the Hilton Hotel in December 1975 and continued working until March 1976. On March 17, 1976 she filed a reinstatement petition with the Bureau of Labor and Industry, alleging that the disability from the October 15, 1973 injury had recurred in her leg and shoulder as a result of injuries sustained in another work related incident on March 8, 1976. On July 12, 1976 she additionally filed an original claim petition for compensation for the March 8, 1976 injury. The

[ 70 Pa. Commw. Page 612]

    referee conducted one hearing on both petitions at which the only witnesses were Mrs. Halaski and Dr. Samuel Sherman, an examining physician called by Mrs. Halaski. The referee denied both petitions on the ground that Mrs. Halaski had failed to prove either that her new disability was related to the October 15, 1973 injury or that she sustained a compensable injury on March 8, 1976.

Our Court held that since the medical evidence offered by the Claimant was "too equivocal to establish a causal relationship between Mrs. Halaski's symptons and either of the alleged incidents said to be their cause", the Workmen's Compensation Appeal Board (Board) should be affirmed. Id. at 610, 394 A.2d at 681. Our decision was subsequently appealed to the Pennsylvania Supreme Court where it was held that inasmuch as the medical testimony "unequivocably established" that the disability flowed from one of the injuries, it was not fatal to Claimant's case that her physician was unable to establish which injury was the cause. Halaski v. Hilton Hotel, 487 Pa. 313, 409 A.2d 367 (1979).

More to the point, with respect to the instant appeal, the Supreme Court held that:

Although additional testimony will be required to ascertain which carrier might be responsible, we are satisfied that appellant on the instant record has established her right to an award.

Id. at 320-21, 409 A.2d at 370-71 (footnote omitted and emphasis added). The Court ordered a remand to the referee for further proceedings consistent with that Court's opinion. The remand was necessary because Claimant's employer was insured by CNA Insurance Company at the time of the 1973 accident, and by the ...


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