No. 34 M.D. App. Dkt. 1982, Appeal from the Order of the Commonwealth Court of Pennsylvania, dated June 2, 1982, docketed to No. 569 C.D. 1981, Pa. Commw. ,
Roberts, C.j., and Larsen, Flaherty, McDermott, Hutchinson and Zappala, JJ. Roberts, C.j., and Hutchinson, J., would affirm the order of the Commonwealth Court, as the record is clear that the petition for termination of compensation benefits filed by appellant's employer was based on appellant's condition at the time that the present petition was filed, and in no way was inconsistent with the employer's prior determination that benefits should be paid. Nix, J., did not participate in the consideration or decision of this case.
On May 16, 1975, appellant Pauline Beissel slipped and fell while working as a waitress for appellee John Wanamaker, Inc. Almost one year later, on March 31, 1976, appellant was hospitalized for lower back and hip pain. She was hospitalized again on April 29, 1976 and June 23, 1976, and during her last hospitalization back surgery was performed in an effort to relieve the pain. On July 6, 1976, appellant filed a petition for workmen's compensation benefits. Written medical reports prepared by four physicians, including appellant's own physician, indicated that appellant's back problems were related to her fall in May, 1975.*fn1 Thereafter, an agreement was reached by appellant and appellee's insurance carrier and a referee permitted the withdrawal of appellant's claim petition.*fn2 On February 7, 1977, appellee filed a notice of compensation payable providing for the
payment of compensation to appellant for a lower back injury.
Two years later, on January 29, 1979, appellee filed a petition for termination of compensation, alleging: "Claimant's present condition unrelated to injury of May 16, 1975." In response, the referee granted a supersedeas and subsequently held a hearing at which appellee placed into evidence the deposition testimony of yet a fifth physician, Dr. William M. Murray.*fn3 On April 1, 1980, the referee made the following findings of fact:
6. That evidence of record shows, that the hospital records on admission of the claimant on March 31, 1976; indicated symptoms of claimant began 10 days prior to said admission to hospital on March 31, 1976.
7. That evidence of record, indicates claimant sustained an incident, in a coughing and laughing spell while playing cards, 10 days prior to March 31, 1976.
8. That medical evidence of record, indicates that claimant's current symptomatology and physical limitations are unrelated to the injury of May 16, 1975.
The referee then entered an order terminating compensation as of June 22, 1979, the date of the supersedeas.
On appeal, both the Workmen's Compensation Appeal Board and the Commonwealth Court affirmed. 67 Pa. Commw. 13, 445 A.2d 1332 (1982). We granted allocatur and we now reverse.
Section 413 of the Workmen's Compensation Act, Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 1 et seq., provides that
A referee designated by the department may, at any time, modify, reinstate, suspend, or terminate a notice of compensation payable, an original or supplemental agreement or an award ...