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MARY ANN SWARTZ v. WORKMEN'S COMPENSATION APPEAL BOARD (DUTCH PANTRY RESTAURANT) (06/09/88)

decided: June 9, 1988.

MARY ANN SWARTZ, PETITIONER
v.
WORKMEN'S COMPENSATION APPEAL BOARD (DUTCH PANTRY RESTAURANT), RESPONDENTS. DUTCH PANTRY RESTAURANT, PETITIONER V. WORKMEN'S COMPENSATION APPEAL BOARD (SWARTZ), RESPONDENTS



Appeals from the Order of the Workmen's Compensation Appeal Board in the case of Mary Ann Swartz v. Dutch Pantry Restaurant, No. A-92838.

COUNSEL

Neil J. Marcus, for petitioner, Mary Ann Swartz.

Joseph S. Weimer, for Dutch Pantry Restaurant.

Michael D. Sherman, Fried, Kane, Walters & Zuschlag, for Dutch Pantry Restaurant/Aetna Life & Casualty Company.

Judges Barry and Smith, and Senior Judge Narick, sitting as a panel of three. Opinion by Senior Judge Narick.

Author: Narick

[ 117 Pa. Commw. Page 48]

Before this Court are the appeals of Mary Ann Swartz (Claimant) and Fireman's Fund Insurance (Fireman's Fund) from a decision of the Workmen's Compensation Appeal Board (Board) which affirmed a referee's decision to set aside a final receipt, to reinstate benefits

[ 117 Pa. Commw. Page 49]

    to Claimant and to grant the review petition of Aetna Life and Casualty Company (Aetna). We affirm.

Claimant was initially injured during the course of her employment with Dutch Pantry Restaurant (Employer) when she received a chemical burn from a solution used to pre-soak silverware. As a result of this chemical burn, Claimant incurred a skin infection and hand dermatitis which required her to miss work from June 11, 1984 to July 23, 1984. Upon her return to work, Claimant was under medical restrictions which prevented her from using chemicals or acidic solutions, and from touching raw foods. Pursuant to a notice of compensation payable dated July 26, 1984, Aetna paid compensation benefits to Claimant for the period of June 11, 1984 to July 23, 1984 in the amount of $640.02. Aetna also paid Claimant's medical bills which totaled $453.10. On July 28, 1984, Claimant signed a final receipt thereby terminating Aetna's liability under the notice of compensation payable.

Claimant continued to work until September 3, 1985 when a new supervisor told Claimant to utilize a chemical detergent. As a result of working with this cleaner, Claimant's hands broke out with dermatitis. On or about November 7, 1985, Claimant filed a petition for reinstatement of compensation pursuant to Section 413 of The Pennsylvania Workmen's Compensation Act (Act),*fn1 77 P.S. § 772 alleging that she was physically disabled and unable to work because her use of the chemical detergent aggravated the pre-existing skin infection and dermatitis which she had previously suffered from in July 1984. Claimant's petition named Employer and Aetna as defendants. Aetna filed a timely answer denying that Claimant sustained an aggravation of a pre-existing condition. It was further averred by Aetna that

[ 117 Pa. Commw. Page 50]

Claimant was erroneously paid by Aetna under the July 26, 1984 notice of compensation payable because the original injury occurred on May 18, 1984 and Aetna did not provide workers' compensation coverage to Employer on this date -- its coverage of Employer did not commence until July 1, 1984. Aetna also filed a petition to join Fireman's Fund as a party defendant alleging that Fireman's Fund was the responsible carrier on May 18, 1984. In addition, Aetna filed a petition to review the notice of compensation payable pursuant to Section 413 of the Act, 77 P.S. § 771 based upon its assertions that Aetna did not insure Employer at the time of the original injury.

After hearing,*fn2 the referee awarded benefits to Claimant for the period September 3, 1985 through February 13, 1986, finding that Claimant had sustained a recurrence of her original injury, but that any inability to work after February 13, 1986 was due to a possible recurrence of dermatitis. The referee also set aside the final receipt executed on July 28, 1984 based upon his conclusion that all of Claimant's disability as a result of the May 18, 1984 injury had not ceased at the time the final receipt was signed. Regarding the review petition filed by Aetna, the referee granted said petition concluding that the July 26, 1984 notice of compensation payable was erroneous because Fireman's Fund was the responsible carrier; therefore, Aetna was entitled to reimbursement from Fireman's ...


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