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ARBOGAST & BASTIAN v. WORKMEN'S COMPENSATION APPEAL BOARD (BAUER) (01/05/84)

decided: January 5, 1984.

ARBOGAST & BASTIAN, INC., PETITIONER
v.
WORKMEN'S COMPENSATION APPEAL BOARD (BAUER), RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in case of Charles F. Bauer v. Arbogast & Bastian, Inc., No. A-81391.

COUNSEL

Charles W. Elliott, with him John P. Thomas, Thomas & Hair, for petitioner.

Wilbur C. Creveling, Jr., for respondents.

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

Author: Crumlish

[ 79 Pa. Commw. Page 365]

Arbogast & Bastian, Inc., appeals a Workmen's Compensation Appeal Board's affirmance of a referee's decision awarding compensation to Charles Bauer. We reverse in part and remand.

On March 2, 1978, Bauer mailed a notarized claim petition to the Bureau of Workers' Compensation, in which he asserted that he had sustained a work-related back injury. It was received by the Bureau on March 6, 1978, and was circulated to the parties by notice dated March 10, 1978.

The referee, on remand,*fn1 found that Bauer had suffered a compensable injury. The referee also determined that the date of notice of the injury to Arbogast was March 2, 1978 -- the date of notarization or filing*fn2 -- and that benefits were due from that date. The Board affirmed.

Arbogast contends that the referee relied on legally insufficient testimony in finding that Bauer suffered an injury*fn3 arising in the course of his employment.

[ 79 Pa. Commw. Page 366]

Arbogast argues that the referee's finding of pre-existing pain in Bauer's right leg contradicts Bauer's medical witness' testimony respecting whether the injury was work-related. We disagree. Bauer's medical witness readily acknowledged Bauer's history of back pain, including a pain in his right leg, and opined that the condition was unequivocally aggravated by the work-related injury.*fn4

Arbogast also argues that, if the award to Bauer is upheld, it is entitled to credit against the award for the health insurance disability payments Bauer received through a program provided by Arbogast. We disagree, because the benefits were terminated upon the filing of his claim petition. As we stated in Steinle v. Workmen's ...


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