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decided: August 1, 1984.


Appeal from the Order of the Workmen's Compensation Appeal Board in case of Stephen Mosgo v. Tri-Area Beverage, Inc., No. A-83303.


Bart E. Ecker, Laputka, Bayless, Ecker & Cohen, P.C., for petitioners.

John A. Bednarz, Jr., for respondent, Tri-Area Beverage, Inc.

Judges MacPhail, Colins and Barbieri, sitting as a panel of three. Opinion by Judge Barbieri.

Author: Barbieri

[ 84 Pa. Commw. Page 317]

Petitioner, Stephen Mosgo (Claimant), appeals from the action of the Workmen's Compensation Appeal Board (Board) in sustaining a referee's decision sanctioning the discontinuance of benefit payments.

Claimant, a driver-salesman for Tri-Area Beverage, Inc. (Employer), suffered a heart attack while delivering half barrels of beer, each weighing 170 pounds, to a customer of the Employer on November 23, 1979, in what he described as "double work" because of the holiday, when he suffered pains in his chest and arms, became weak and was sweating. He was relieved of duty and reported to his physician, Glenwood R. Schreiner, M.D., who promptly sent him to Hazleton State General Hospital where he was admitted to the Intensive Care Unit and treated for "his

[ 84 Pa. Commw. Page 318]

    coronary heart attack." Dr. Schreiner, in response to an inquiry from the insurance carrier's adjuster as to whether the heart attack was "as a result of strenuous activity," replied, "I feel that the attack occurred as a result of strenuous activity." The insurer, having begun its investigation on November 28, 1979, obtained a signed statement from the Claimant on December 12, 1979, and having received Doctor Schreiner's report dated December 20, 1979, made payments of compensation due for the period November 24, 1979 to January 4, 1980, stating in a memorandum to Claimant dated December 28, 1979 "[w]e have not yet completed our medical investigation of your case. However, we are issuing an initial compensation-check due to the length of time since injury occurred. We reserve the right to deny the claim if future medical reports show case is not compensable." The insurer states that payments were discontinued because of a report received by it from a physician, Dr. F. Gazek, stating "Mr. Mosgo's type of work was not related to his heart attack." The date of receipt of Dr. Gazek's communication is uncertain, but the request therefor was dated December 19, 1979 and the insurer's witness testified that he had no date when Dr. Gazek's report was received; only that it was "after Dr. Schreiner's report." A Notice of Workmen's Compensation Denial, as required under the third paragraph of Section 406.1 of The Pennsylvania Workmen's Compensation Act (Act),*fn1 and mandated under 34 Pa. Code § 121.13 to be filed within twenty-one days after notice or knowledge of the employe's disability, was not filed until January 16, 1980.

The insurer took none of the statutory steps required in order to discontinue compensation payments,

[ 84 Pa. Commw. Page 319]

    such as a petition for termination under Section 413 of the Act, 77 P.S. § 771. Claimant, however, in an effort to have the payments reinstated, filed a petition entitled "PETITION TO REVIEW NOTICE OF COMPENSATION," averring therein: "Stephen Mosgo, Claimant/Employee petitions for a review of the Notice of Compensation Payable in the above-captioned matter in accordance with Paragraph 413 of the Workmen's Compensation Act." Claimant averred also that he had "sustained a compensable accident on November 23, 1979 while in the course of his employment with the Defendant Employer;" that the "Defendant Employer and/or its workmen's compensation insurance carrier paid Claimant temporary total disability benefits for the period November 24, 1979 through January 4, 1980;" and that "Defendant and/or its workmen's compensation carrier, unilaterally and in violation of the Workmen's Compensation Act, suspended payment of any further total disability benefits;" requesting relief in the nature of "an Order . . . directing the Defendant and/or workmen's compensation insurance carrier to resume payments in accordance with the Notice of Compensation under which Claimant was previously paid."

Defendant's answer admitted payment stating "said payments were made pending investigation as to compensability of accident," requesting "that an order be entered directing that claimant did not sustain a compensable accident,*fn2 and that Employer and Workmen's Compensation Insurance Carrier are not liable for payment ...

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