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decided: March 9, 1987.


Appeal from the Order of the Workmen's Compensation Appeal Board in the case of Paul W. Sheetz v. Firestone Tire & Rubber Company, No. A-85751.


Warren H. Prince, for petitioner.

James F. Pearn, Jr., with him, Roger E. Legg, Roger E. Legg & Associates, for respondent, Firestone Tire and Rubber Co. and Travelers Insurance Co.

President Judge Crumlish, Jr., Judge Colins, and Senior Judge Barbieri, sitting as a panel of three. Opinion by Senior Judge Barbieri.

Author: Barbieri

[ 104 Pa. Commw. Page 412]

Paul W. Sheetz, Claimant, appeals here the decision of the Workmen's Compensation Appeal Board (Board) which affirmed a referee's decision denying Claimant benefits on three petitions filed by Claimant. As will appear, unfortunately because of the continued delay in this over-extended litigation, we must reverse and remand.

This critically disabled Claimant has undergone three surgical procedures, called "partial hemilaminectomies," for disc protrusions in Claimant's low back at the level of L5-S1. The first of these was honored as work related by the insurer for Firestone Tire & Rubber Company, Liberty Mutual Insurance Company, by Notice of Compensation Payable, dated March 4, 1974 for herniated disc by injury on January 16, 1974, with disability stated as beginning February 13, 1974. Subsequently, there was a final receipt entered into when Claimant returned to work on May 13, 1974, but this was eliminated by supplemental agreements for recurrences, reinstating total disability benefits, all attributed to the January 16, 1974 injury, and each containing an amicable suspension agreement on Claimant's return to work. The last of these supplemental agreements was entered into for a recurrence of total disability as of June 2, 1978, reinstating payments until Claimant returned to work with suspension of benefits as of August 3, 1978. Key factors apparently influencing this litigation arise out of the change of insurers from Liberty Mutual to Travelers Insurance Company as of

[ 104 Pa. Commw. Page 413]

July 31, 1977, and the increase in Claimant's pay and, consequently, his benefit rate after that date.*fn1 Claimant was laid-off August 12, 1979, but compensation payments were not reinstated then or thereafter. On August 22, 1980, Claimant filed three petitions: (1) Petition to Review Existing Agreement averring that a new occurrence on June 1, 1978 caused disability until August 3, 1978; (2) a Claim Petition averring an injury in May of 1978 with disability from May 5, 1978; and (3) a Review Petition averring a new injury as of October 3, 1977, with disability to March 9, 1978. Answers to all petitions were duly filed by Liberty Mutual, asserting non-liability and that it was not on the risk on the injury dates averred and, therefore, was not a proper defendant in the action. Travelers Insurance Company, although not named in any of the three petitions, subsequently became a party of record and no issue has been raised as to the responsibility of Travelers to pay for a compensable disability occurring during the period of its coverage. A motion to amend these petitions was made at trial to have the Claim Petition aver injury on March 10, 1978, one Review Petition averring an injury on October 3, 1977, was amended to aver that the 1977 injury occurred in early September of 1977, and the other Review Petition which averred an injury as of June 1, 1978 was amended to aver that the injury took place on March 10, 1978. It is undisputed that Claimant's average weekly wage in 1977 through 1978

[ 104 Pa. Commw. Page 414]

    was $264.85 which would yield a compensation rate of $176.57, whereas the compensation rate set forth for compensation payable for the injury of January 16, 1974 is $106.00.*fn2

At the several hearings before the referee, Claimant's witnesses were himself, a fellow worker, Thomas Schrump, and Gregory J. Lignelli, M.D., the operating neurosurgeon who had Claimant under his care since the 1974 accident. Defendants called Norman F. Hess, Jr., former Labor Relations Manager for Firestone, William J. DeLong, supervisor for Firestone and Mark Lukas, employee of a Vocational Rehabilitation Company. No medical witness was called for the defense, although there appears throughout the testimony the name of Dr. Diaz, Firestone's plant physician who apparently saw and advised Claimant throughout his continuing back problems following the injury of January 16, 1974*fn3 and who referred Claimant for treatment and surgery to Dr. Lignelli.*fn4

The referee made findings indicating a lack of adequate notice of injuries suffered after the 1974 injury

[ 104 Pa. Commw. Page 415]

    and lack of sufficiently unequivocal medical testimony to support work relationship of injuries and disabilities after the 1974 liability. He dismissed all three of claimant's petitions and the Board affirmed, and, of course, denied an award of counsel fees. This appeal followed.

Our scope of review is limited to a determination of whether constitutional rights have been violated, whether an error of law has been committed, or whether the referee's critical findings of fact are supported by substantial evidence. Estate of McGovern v. State Employees' Retirement System, 512 Pa. 377, 517 A.2d 523 (1986); Kear v. Workmen's Compensation Appeal Board (Fairman Drilling Co.), 102 Pa. Commonwealth Ct. 193, 517 A.2d 586 (1986).

First and most basic in this case is that there is an outstanding suspension created by agreement as to the original back injury in 1974. In order to terminate such suspended and existing liability, the burden would be upon the employer to establish termination and, of course, defendants in this case did not adduce any medical testimony, nor do we find other evidence which would warrant the apparent termination of liability for the 1974 injury which is to some extent deemed to be a forerunner or basic background factor to Claimant's subsequent episodes of disability for which he filed petitions. Indeed, there is evidence in the record that the 1974 injury is at the root of all of Claimant's back troubles.*fn5

[ 104 Pa. Commw. Page 416]

In Busche v. Workmen's Compensation Appeal Board (Townsend & Bottum, Inc.), 77 Pa. Commonwealth Ct. 469, 466 A.2d 278 (1983), where lighter work was provided by the employer with no diminution

[ 104 Pa. Commw. Page 417]

    in wages and then such work was discontinued, as in this case, we held that "proof of the discontinuances of such employment is Claimant's only burden." We stated:

In this case, . . . Claimant simply must show that, while his disability has continued his loss of earnings has recurred.

[ 104 Pa. Commw. Page 418]

We conclude that liability for the 1974 disc herniation is still preserved by the suspension agreement which has not been terminated or otherwise affected by final receipt, by the termination order or by these proceedings.

Also, although the petitions as filed in this case do not address the issue as to the 1974 liability,*fn6 there can be no doubt that this uncontested disability can be addressed regardless of the averments contained in the present petitions. Bell Telephone Co. v. Workmen's Compensation Appeal Board (Rothenbach), 98 Pa. Commonwealth Ct. 332, 511 A.2d 261 (1986); Mosgo v. Workmen's Compensation Appeal Board (Tri Area Beverage, Inc.) 84 Pa. Commonwealth Ct. 316, 480 A.2d 1285 (1984); Pittsburgh Press Co. v. Workmen's Compensation Appeal Board (Pecora), 82 Pa. Commonwealth Ct. 538, 475 A.2d 972 (1984). In Pecora, we stated:

It has long been the rule in workmen's compensation cases that the form of the petition filed is not controlling where the facts warrant relief, and that if a claimant is entitled to relief under any section of the Act, his petition will be considered as filed under that section. (Citations omitted).

82 Pa. Commonwealth Ct. at 540, 475 A.2d at 973.

[ 104 Pa. Commw. Page 419]

We come now to the question of whether or not the existing findings are supported by substantial evidence. The key finding, No. 13, reads:

13. The opinions of Claimant's expert medical witness, Gregory J. Lignelli, M.D., Board certified in neurological surgery, was not sufficiently unequivocal to establish that the disc herniations detected in October 1977 and August 1980 were causally related to Claimant's employment, particularly in view of Dr. Lignelli's lack of knowledge of a bicycle accident occurring in September 1977 resulting in low back and leg pain, and Dr. Lignelli's incorrect understanding that Claimant initially injured his low back in January 1964 as a result of heavy lifting, and an incorrect hypothetical question posed to Dr. Lignelli that he was to assume as true that Claimant was doing well subsequent to the 1974 surgery and that Dr. Lignelli did not ...

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