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

COMMONWEALTH COURT OF PENNSYLVANIA


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 Compensation Appeal Board, 38 Pa. Commonwealth Ct. 241, 245, 393 A.2d 503, 505-06 (1978):

[ 79 Pa. Commw. Page 367]

[W]hen an employee is totally disabled and the employer, while denying any liability for workmen's compensation, nevertheless pays the employee regular stated amounts . . . out of sick or accident benefits or relief funds contributed by it, not as wages or salary for work performed, but in relief of the employee's incapacity to labor, on its being determined that the employee is entitled to workmen's compensation, the amount paid by the employer discharges its liability for compensation for the Page 367} weeks in which its payments to him equaled or exceeded the compensation payable. (Emphasis partially deleted; emphasis added) (quoting Creighton v. Continental Roll & Steel Foundry Co., 155 Pa. Superior Ct. 165, 173, 38 A.2d 337, 341 (1944).)

Thus, since the weeks in which the health insurance disability benefits were paid do not coincide with any of the weeks in which workmen's compensation benefits are due under our decision herein, Arbogast is not entitled to any credit.*fn5

Lastly, Arbogast contends that the mere filing of the claim petition was insufficient notice of the injury under Section 311 of the Act, 77 P.S. § 631.*fn6 We agree.*fn7 The referee erred as a matter of law in finding the filing date as the time of notice. Lanzarotta v. Workmen's Compensation Appeal Board, 42 Pa. Commonwealth Ct. 284, 288, 400 A.2d 697, 700 (1979). Section

[ 79 Pa. Commw. Page 368406]

of the Act, 77 P.S. § 717, states that "notices and copies to parties shall be deemed served on the date when mailed." The proper date of notice, therefore, was March 10, 1978 -- the date the claim petition was circulated to the parties. Hence, it is necessary to remand this case for recomputation of benefits utilizing the March 10, 1978 notice date.

Reversed in part and remanded.

Order

The order of the Workmen's Compensation Appeal Board, No. A-81391 dated May 13, 1982, is reversed in part and remanded for recomputation of benefits utilizing March 10, 1978 as the date of notice of the injury to Arbogast & Bastian, Inc. Jurisdiction relinquished.

Disposition

Reversed in part and remanded.


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