Appeal from the Order of the Workmen's Compensation Appeal Board in the case of William F. Rothenbach, Jr. v. Bell Telephone Co. of Pennsylvania, No. A-85456.
Jackie B. Sparkman, for petitioner.
John W. McTiernan, for respondent.
President Judge Crumlish, Jr., Judge Colins, and Senior Judge Blatt, sitting as a panel of three. Opinion by Judge Blatt.
[ 98 Pa. Commw. Page 333]
The Bell Telephone Company of Pennsylvania (Bell) petitions for review of the order of the Workmen's Compensation Appeal Board (Board) which reversed the decision of a referee disallowing further compensation to William F. Rothenbach, Jr. (claimant); dismissing the claimant's Petition to Review; and terminating the Notice of Compensation Payable to which Bell and the claimant had agreed.
The claimant was originally injured, when, as he was performing his duties on June 6, 1980, a chair on which he was sitting broke and he sustained a lower back injury. The aforementioned Notice of Compensation Payable was filed on June 6, 1980 and the claimant received benefits at the rate of $242.00 per week thereunder. On September 1, 1980, the claimant returned to work at his former salary with no loss of earning power.
[ 98 Pa. Commw. Page 334]
On August 19, 1981, the claimant experienced low-back pain upon awakening and he was unable to get out of bed. He was unable to relate that pain to any activity or injury subsequent to his return to work on September 1, 1980. He did not report to work from August 19, 1981 through August 8, 1982.
The June 16, 1980 Notice of Compensation Payable had not been modified, suspended or terminated by a supplemental agreement or any petition filed by Bell as of August 19, 1981. On June 1, 1982, the claimant filed a Reinstatement Petition alleging a recurrence of disability as of August 19, 1981 due to his June 6, 1980 injury. At the August 3, 1982 hearing before the referee, the claimant's counsel requested and was granted an amendment of the Reinstatement Petition to a Petition to Review the Notice of Compensation Payable.
Finding that the claimant failed to establish a "legal nexus" between his alleged disability from August 19, 1981 through August 8, 1982 and his June 6, 1980 work injury, the referee dismissed the Petition to Review and terminated the Notice of Compensation Payable as of September 1, 1980 in conformity with the claimant's return to work on that date.
Relying on Workmen's Compensation Appeal Board v. Leuschen, 21 Pa. Commonwealth Ct. 39, 342 A.2d 810 (1975), the Board concluded that, inasmuch as Bell had not filed a petition to modify, suspend or terminate the Notice of Compensation Payable, the referee was without jurisdiction to rule on that agreement under Section 413 of The Pennsylvania Workmen's Compensation Act (Act).*fn1
On review, Bell cites Mosgo v. Workmen's Compensation Appeal Board (Tri-Area Beverage, Inc.), 84 Pa. Commonwealth Ct. 316, ...