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OLD REPUBLIC COMPANIES v. WORKMEN'S COMPENSATION APPEAL BOARD (ECKENRODE (01/13/87)

decided: January 13, 1987.

OLD REPUBLIC COMPANIES, PETITIONER
v.
WORKMEN'S COMPENSATION APPEAL BOARD (ECKENRODE, ROCKWOOD INSURANCE COMPANY), RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board, in case of David J. Eckenrode v. Cooney Brothers Coal Company, No. A-89188.

COUNSEL

Paul E. Sutter, Tillman & Thompson, for petitioner.

Timothy P. Creany, Pawlowski, Creany & Tulowitzki, for respondents.

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

Author: Colins

[ 103 Pa. Commw. Page 160]

This is an appeal by Old Republic Companies (petitioner) from an order of the Pennsylvania Workmen's Compensation Appeal Board (Board) affirming a referee's award of benefits*fn1 and dismissing petitioner's petition for joinder of Rockwood Insurance Company (Rockwood) as a party defendant.

David J. Eckenrode (claimant) was in the employ of Cooney Brothers Coal Company when, on March 31, 1977, a 150-pound conduit line fell upon him injuring his back. Claimant filed for and received workmen's compensation disability benefits from petitioner for the period of March 31, 1977, to March 26, 1979. During this same period, claimant received treatment from his treating physician George H. Wheeling, M.D. who, on December 15, 1977, performed a spinal fusion L5 to sacrum with autogenous right iliac bone graft, in an effort to alleviate claimant's disability. This operation proved to be relatively successful. Therefore, in March, 1979, claimant returned to work and his compensation was suspended.

On August 5, 1982, claimant, while still in the employ of Cooney Brothers, again injured his back, this

[ 103 Pa. Commw. Page 161]

    time by slipping as he stepped from a truck. Rockwood, which was the carrier for Cooney Brothers at that time, paid workmen's compensation benefits from August 13, 1982, to January 12, 1983. At this latter date, Dr. Wheeling, feeling that claimant had recovered from his slip and fall accident, released claimant for work on a light duty basis. However, despite being released for work, claimant did not return to work and his employer did not notify him as to the availability of suitable work.

Between January, 1983, and January, 1984, claimant complained of continued back pain. In response to these complaints, Dr. Wheeling conducted exploratory surgery on the claimant, discovering a fascial hernia on the right posterior crest of the graft donor site of the 1977 operation. Dr. Wheeling surgically corrected this hernia in October of 1983. Subsequently, on January 9, 1984, Dr. Wheeling deemed claimant recovered from his injured back and again released him for work.

Claimant filed a reinstatement petition against Cooney Brothers and petitioner, alleging disability for an indefinite period of time dating from March 31, 1977. Petitioner denied the claim and filed a petition for joinder of Rockwood.

A hearing was held and, on October 3, 1984, the referee who presided over the hearing made a determination directing petitioner to pay workmen's compensation benefits for the period from January 16, 1983, to January 9, 1984. The referee also denied petitioner's petition to join Rockwood as a party ...


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