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THOMAS D. O'LEARY v. WORKMEN'S COMPENSATION APPEAL BOARD (BETHLEHEM MINES CORP.) (10/12/88)

decided: October 12, 1988.

THOMAS D. O'LEARY, PETITIONER
v.
WORKMEN'S COMPENSATION APPEAL BOARD (BETHLEHEM MINES CORP.), RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in the case of Thomas D. O'Leary v. Bethlehem Mines Corporation, No. A-92926.

COUNSEL

Thomas P. Geer, for petitioner.

Robert G. Rose, Spence, Custer, Saylor, Wolfe & Rose, for respondent, Bethlehem Mines Corp.

Judges Craig and Palladino, and Senior Judge Barbieri, sitting as a panel of three. Opinion by Judge Craig. This decision was reached prior to the resignation of Judge MacPhail. Judge Palladino dissents.

Author: Craig

[ 120 Pa. Commw. Page 330]

Thomas D. O'Leary appeals from an order of the Workmen's Compensation Appeal Board, which affirmed a decision of a referee denying his application for

[ 120 Pa. Commw. Page 331]

    benefits under The Pennsylvania Workmen's Compensation Act.*fn1

The sole issue is whether there is substantial evidence to support the referee's finding that O'Leary's injury in 1982 did not constitute an aggravation of his injury in 1978. Because we conclude that the evidence shows that both the injury in 1978 and the injury in 1982 were recurrences of an injury in 1976, and thus the 1982 injury was a recurrence of the 1978 injury, we reverse.

The history of this case is as follows. O'Leary began his employment as an underground coal miner with Bethlehem Mines Corporation on March 22, 1976. In November of 1976, O'Leary suffered an injury to his lower back, for which he received benefits under the Act. He executed a final receipt and returned to work. On June 6, 1978, O'Leary was again incapacitated by lower back problems. O'Leary filed a new claim for the June 1978 injury and was awarded benefits. O'Leary suffered a recurrence on May 8, 1979, for which he received benefits under a supplemental agreement. On February 1, 1980, O'Leary executed a final receipt. On August 17, 1982, O'Leary had to leave the mine because of pain in his lower back. In December of 1982, O'Leary filed a petition for reinstatement, alleging that on August 17, 1982, he suffered a recurrence of the injury he had suffered on June 6, 1978. At the hearing, the referee permitted O'Leary's counsel to amend his petition for reinstatement to a new claim petition alleging that the injury suffered by O'Leary on August 17, 1982 constituted an aggravation of a pre-existing back condition.

The referee made the following findings of fact:

22. That after considering all of the facts, events, and testimony in ...


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