Appeal from the Order of the Workmen's Compensation Appeal Board in case of Patrick DeMarco v. Matlack, Inc., No. A-84890.
Patrick DeMarco, petitioner, for himself.
Charles S. Katz, Jr., Swartz, Campbell & Detweiler, for respondent, Matlack, Inc.
Judges Craig and Palladino, and Senior Judge Barbieri, sitting as a panel of three. Opinion by Judge Craig.
[ 101 Pa. Commw. Page 55]
Pro se claimant Patrick DeMarco appeals the Workmen's Compensation Appeal Board's order affirming a referee's decision which dismissed Mr. DeMarco's petition for compensation for an injury he alleged that he suffered on October 4, 1978. The board's order also granted employer Matlack, Inc.'s petition for termination of the benefits which Matlack had been paying to Mr. DeMarco for an injury which he suffered in the course of his employment as a trucker with Matlack, on April 22, 1974.
The board awarded Mr. DeMarco total disability compensation at $160 per week, which continued until he returned to work on September 11, 1978, at $214 per week.
Mr. DeMarco has alleged that, on October 4, 1978, he suffered a new injury to his back while lifting a hose during a delivery. He testified that he reported it to the manager-dispatcher upon returning to the terminal. Mr. DeMarco continued working until October 16, 1978. Thereafter, Matlack reinstated total disability payments at $106 per week.*fn1
By means unexplained, Mr. DeMarco discovered in early 1980 that the compensation which Matlack was paying was for the 1974 injury -- not for the 1978 injury, as he had believed. On February 22, 1980, through counsel, Mr. DeMarco filed a petition for compensation for the 1978 injury. In April of 1980, the referee held a
[ 101 Pa. Commw. Page 56]
hearing and received testimony. However, he concluded the hearing by continuing the case. No further hearing followed.
By order dated February 17, 1981, the referee adopted, as his findings of fact, a stipulation of fact challenged by Mr. DeMarco.*fn2 The referee concluded that Mr. DeMarco did not suffer a new compensable injury in 1978 and dismissed the claim petition. By order of that same date, the referee also granted Matlack's petition for termination of benefits for the 1974 injury as of October 28, 1980.
On appeal, the board addressed only the referee's dismissal of Mr. DeMarco's claim petition for the 1978 injury, remanding the case "to afford the parties to this action, particularly the claimant, an opportunity to be heard concerning the facts ...