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BAKSALARY v. SMITH

August 29, 1986

RICHARD BAKSALARY, et al.
v.
PAUL J. SMITH, et al.; In Re: Mary McGettigan v. Commercial Union Insurance Company



Per Curiam

Findings of Fact

 1. Petitioner Mary McGettigan, an employee of Automatic Data Processing (ADP), and a member of the plaintiff class, slipped and fell at the ADP cafeteria on July 27, 1981.

 2. On March 31, 1982, respondent Commercial Union Insurance Company, ADP's workmen's compensation carrier, and a member of the class of defendant insurance carriers, issued a check to Ms. McGettigan in the sum of $515.06. This check constituted compensation benefits for three weeks and five days of intermittent disability between July 27, 1981 and March 30, 1982. On July 27, 1982, Commercial Union issued to Ms. McGettigan its check for $138.67, reflecting benefits for intermittent hours, aggregating about a week in toto, lost from work between April 11, 1982 and July 11, 1982. The July 27, 1982 payment is the last disability compensation payment made by Commercial Union to Ms. McGettigan. Pursuant to the Workmen's Compensation Act, Commercial Union has paid Ms. McGettigan's medical expenses and continues to make provision for medical benefits.

 3. From July 27, 1982 to November 29, 1984, Ms. McGettigan received wages on a full time basis from ADP.

 4. On July 27, 1982 -- the day of Commercial Union's last disability compensation payment to Ms. McGettigan -- Judy L. Weber of Commercial Union sent to Susan McLaughlin, Esq., of Harvey, Pennington, Herting & Renneisen, counsel to Ms. McGettigan, a "notice of compensation payable" with the request that Ms. McGettigan sign and return the document. The "notice of compensation payable" stated, in pertinent part:

 
Injury occurred on 7/27/81. Claimant has continued work and has lost intermittent [ sic ] hours from employment for which she was reimbursed; compensation benefits are suspended as of 7/27/81.

 After a further request to claimant's counsel, the "notice of compensation payable" was signed by Ms. McGettigan. Just when Ms. McGettigan signed is uncertain, but it is agreed by the parties that the signing was subsequent to March 17, 1983.

 5. In January of 1984, David L. Pennington, Esq. of Harvey, Pennington, Herting & Renneisen, filed on Ms. McGettigan's behalf a "Petition for Reinstatement of Compensation," which appears to have been principally directed to the carrier's alleged refusal "to pay reasonable and necessary medical expenses" and "to enter into a supplemental agreement recognizing the recurrence of disability." After several hearings, Workmen's Compensation Referee Carl M. Lorine entered an order (1) noting that "at the hearing of October 16, 1984 counsel for the claimant moved that the instant Petition be marked withdrawn" and (2) directing that the petition be so marked.

 6. "Not having received disability compensation from either her employer or Commercial Union after November 29, 1984 Class Plaintiff McGettigan filed a second Petition for Reinstatement of Compensation dated April 24, 1985, alleging, inter alia, that her disability had re-occurred on November 24, 1984." Stipulation of Fact, paragraph 24. At the close of a hearing before Referee Lorine, held on June 19, 1985, at which L. Oliver Frey, Esq. of Harvey, Pennington, Herting & Renneisen, represented Ms. McGettigan and Thomas C. Lowry, Esq. of Swartz, Campbell & Detweiler represented Commercial Union, the following colloquy was had between the Referee, Mr. Frey and Mr. Lowry:

 
MR. FREY: To quote your own words, your Honor --
 
THE REFEREE: Rather than quoting my own words, I look at this notice of compensation payable and I misspoke.
 
Apparently, claimant did sign this document with somebody named Judy Weber.
 
Unfortunately, it states over here under remarks that the injury occurred on 7/27/81, claimant has continued working and has lost intermittent hours from employment for which she was reimbursed, compensation benefits are suspended -- and it says, ...

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