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CHRISTOPHER J. KONDZIELSKI v. WORKMEN'S COMPENSATION APPEAL BOARD (NORTHWESTERN RURAL ELECTRIC CO-OP) (08/09/83)

decided: August 9, 1983.

CHRISTOPHER J. KONDZIELSKI, PETITIONER
v.
WORKMEN'S COMPENSATION APPEAL BOARD (NORTHWESTERN RURAL ELECTRIC CO-OP), RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in the case of Christopher J. Kondzielski v. Northwestern Rural Electric Co-Op, No. A-80497.

COUNSEL

Harry Faber White II, Law office of William T. Jorden, for petitioner.

Joseph F. Grochmal, Fried, Kane, Walters & Zuschlag, for respondent, Northwestern Rural Electric Co-Op.

President Judge Crumlish, Jr. and Judges MacPhail and Barbieri, sitting as a panel of three. Opinion by President Judge Crumlish, Jr.

Author: Crumlish

[ 76 Pa. Commw. Page 235]

Christopher J. Kondzielski appeals a Workmen's Compensation Appeal Board order affirming a referee's dismissal of his petition to set aside a final receipt. We reverse and remand.

Kondzielski, following an injury to his back at work, received disability compensation, which was

[ 76 Pa. Commw. Page 236]

    terminated upon his return to work and his execution of a final receipt. After suffering constant pain in his back, hips, and legs for several months, he experienced sudden, severe pain in those areas while engaged in athletic activity. Following disc surgery, he was disabled for a second period of time. His petition to set aside the final receipt was dismissed, the referee finding that the second disability was not the natural and probable consequence of the initial work-related injury. The Board affirmed.

Where the party with the burden of proof has not prevailed below, our review is limited to determining whether constitutional rights were violated, an error of law was committed, or there has been a capricious disregard of competent evidence. Killian v. Workmen's Compensation Appeal Board, 62 Pa. Commonwealth Ct. 29, 434 A.2d 906 (1981).

Kondzielski contends that the referee and the Board erred in rejecting his doctor's report, which purported to establish a causal link between the work-related injury and the second disability. It read: "[I]t is my medical opinion that [Kondzielski] sustained an industrial injury to the lower back . . . and that the basketball incident consisted of an aggravation of a previously existing condition." The referee and the Board concluded that "aggravation of a previously existing condition" was a new cause, a non-compensable injury.*fn1

Section 301(c) of the Workmen's Compensation Act*fn2 provides that "injury"

     shall be construed to mean an injury to an employe, regardless of his ...


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