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H.K. PORTER COMPANY v. WORKMEN'S COMPENSATION APPEAL BOARD (O'CONNOR) (08/06/87)

decided: August 6, 1987.

H.K. PORTER COMPANY, PETITIONER
v.
WORKMEN'S COMPENSATION APPEAL BOARD (O'CONNOR), RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in the case of Stephen J. O'Connor v. H.K. Porter Company, No. A-89010.

COUNSEL

Robert A. Detweiler, for petitioner.

Marc S. Jacobs, for respondent.

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

Author: Palladino

[ 108 Pa. Commw. Page 255]

H.K. Porter Co. (Petitioner) petitions for review of an order of the Workmen's Compensation Appeal Board (Board) which dismissed Petitioner's appeal and affirmed a decision of the referee.

Stephen J. O'Connor (Claimant) filed a Claim Petition alleging that on September 10, 1979 he sustained a back injury as a result of lifting a spool of wire while in the course of his employment. Petitioner, self-insured at that time, issued a Notice of Compensation Payable and began payment of compensation to Claimant. Petitioner,

[ 108 Pa. Commw. Page 256]

    however, also filed a Petition for Review asserting that Claimant's injury was actually a reoccurrence of a prior work-related injury sustained by Claimant on May 10, 1977. Petitioner asserted that although Claimant was in its employ on May 10, 1977, Pennsylvania Manufacturer's Association (PMA) was the insurance carrier and, therefore, PMA should be liable for payment to Claimant. A hearing was held before a referee who found that Claimant, in light of the medical opinion of his treating orthopedist, suffered a new work-related injury on September 10, 1979 in the form of an aggravation of his pre-existing back condition. Therefore, the referee concluded that Petitioner and not PMA, was liable for payment of compensation to Claimant. Petitioner then appealed to the Board which affirmed the referee.

On appeal to this court, Petitioner asserts that the Board erred in affirming the referee because the finding that Claimant sustained a new injury on September 10, 1979 is not supported by substantial evidence. Petitioner asserts that the following testimony of Dr. Charles Hummer, Claimant's treating physician, upon which the referee and the Board relied, does not support a conclusion that Claimant sustained a "new injury" rather than a reoccurrence of his 1977 injury:

Q. Now Doctor, . . . Do you have an opinion as to whether Mr. O'Connor had full recovered from his injury of 5/10/77 before his admission at Riddle on 10/5/79? First of all, do you have an opinion?

A. I think to understand the opinion, you must understand what we're dealing with. What we are dealing with is a structural defect in the spinal column which predisposes patients to have symptomatic mechanical low ...


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