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GUY R. DAVIS v. WORKMEN'S COMPENSATION APPEAL BOARD (NATIONAL FUEL GAS) (06/27/88)

decided: June 27, 1988.

GUY R. DAVIS, PETITIONER
v.
WORKMEN'S COMPENSATION APPEAL BOARD (NATIONAL FUEL GAS), RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in the case of Guy R. Davis v. National Fuel Gas, No. A-91205.

COUNSEL

Albert E. Wehan, III, Schroeck, Segal & Murray, P.C., for petitioner.

Harry K. Thomas, with him, Richard E. Bordonaro, Knox, Graham, McLaughlin, Gornall & Sennett, Inc., for respondent.

Judges Craig, Doyle and Palladino, sitting as a panel of three. Opinion by Judge Palladino.

Author: Palladino

[ 117 Pa. Commw. Page 321]

Guy R. Davis (Petitioner) appeals from an order of the Workmen's Compensation Appeal Board (Board) affirming a referee's decision dismissing Petitioner's claim petition. We affirm.

Petitioner was employed by National Fuel Gas (Employer). Petitioner's last day of work was November 14, 1980. Employer paid Petitioner his full pay from November 1980 to May 1981 and half pay from May 1981

[ 117 Pa. Commw. Page 322]

    until September 20, 1981 as sick pay disability pursuant to a company benefits plan.

On May 29, 1984, Petitioner filed a claim petition alleging that he injured his back on November 14, 1982 while in the course of his employment. This claim petition was subsequently amended on October 12, 1984 to allege that the injury occurred on November 14, 1980. On June 18, 1984, Employer filed an answer to the claim petition which raised the statute of limitations and notice provisions of The Pennsylvania Workmen's Compensation Act (Act)*fn1 as defenses.

Hearings were held before a referee on October 12, 1984 and January 7, 1985. The referee made the following pertinent findings of fact:

5. Every year the Claimant received the Defendant's Employee Benefit Plan booklet which lists his benefits. This booklet provides specifically, 'Sick Pay -- If temporarily disabled, you receive benefits from the Company, based on service, which together with statutory benefits such as Workmen's Compensation, Social Security or state-required benefits, provides you with continuing income.' Your Referee finds that this provision clearly indicates that the benefits received by Claimant were identified as not being Workmen's Compensation.

6. The Defendant presented the testimony of its claim supervisor. He testified that the first knowledge the Defendant had that Claimant was claiming an injury on November 14, 1980, was the filing of the Claim ...


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