Workmen's Compensation Appeal Board v. Olivetti Corp. of America

364 A.2d 735, 26 Pa. Commw. 464, 1976 Pa. Commw. LEXIS 1322
CourtCommonwealth Court of Pennsylvania
DecidedOctober 1, 1976
DocketAppeal, No. 13 C.D. 1976
StatusPublished
Cited by25 cases

This text of 364 A.2d 735 (Workmen's Compensation Appeal Board v. Olivetti Corp. of America) is published on Counsel Stack Legal Research, covering Commonwealth Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Workmen's Compensation Appeal Board v. Olivetti Corp. of America, 364 A.2d 735, 26 Pa. Commw. 464, 1976 Pa. Commw. LEXIS 1322 (Pa. Ct. App. 1976).

Opinion

Opinion by

Judge Crumlish, Jr.,

The Olivetti Corporation of America (Olivetti) has appealed a decision and order of the Workmen’s Compensation Appeal Board (Board) which affirmed the referee’s decision granting benefits to Helen Jante (Claimant). Finding no error in the proceedings below, we must affirm.

Claimant was employed by Olivetti as a typewriter inspector. On June 27,1970, while in the course of her employment, Claimant suffered an accidental injury when she picked up a defective typewriter from the assembly line and placed it on the floor. Having received prompt notification of the injury, Olivetti’s plant'nurse assisted Claimant in filling out the forms for benefits and assured her that her claim would be duly processed.

[466]*466In September, 1970, Claimant began receiving monthly payments from Olivetti’s non-occupational sickness and accident insurance carrier (Aetna Life and Casualty Co.) for what she assumed were workmen’s compensation benefits. These payments' continued until December 17, 1973. In fact, unknown to Claimant, Olivetti’s workmen’s compensation carrier (Travelers Insurance Co.) had rejected the compensation claim in August, 1970. On January 7, 1974, Claimant filed a document entitled Petition to Review Provisions of Existing Compensation Agreement, but later amended it to become a compensation claim petition.

The referee found as a fact that Claimant’s accidental injury was due to “the unusual strenuous exertion of her duties on that particular day. ’ ’ The referee found that Claimant suffers a 50% functional disability as a result of her accidental injury and is therefore totally disabled. As to the timing of Claimant’s claim petition, the referee found that Claimant had been lulled into a false sense of security when Olivetti’s nurse provided forms for Claimant and helped her to complete them. This being so, the referee held that the statute of limitations did not bar the claim petition and awarded benefits for total disability.

Since the alleged accident occurred prior to the 1972 Amendments to The Pennsylvania Workmen’s Compensation Act1 (Act), Claimant was required to relate her disability to an “accident” within the scope of her employment in accordance with Section 301(c) of the Act, 77 P.S. §411. The judicial definition of the term “accident” as used in the Act includes a concept known as the “unusual strain” doctrine. Under this doctrine, a claimant has suffered a compensable “accident” when he or she suffers an “unusual exer[467]*467tion in the course of work causing an unexpected and sudden injury.” Puher v. United States Steel Corp., 18 Pa. Commonwealth Ct. 278, 335 A.2d 854 (1975); Hinkle v. H. J. Heinz Co., 7 Pa. Commonwealth Ct. 216, 298 A.2d 632 (1972). To prove a compensable accident under this definition, a claimant must establish that the injury was the result of unusual physical effort exerted to meet an unusual situation and that, considering the individual work history of the employe, the effort was not normally connected with his or her work. Puher v. United States Steel Corp., supra. The injury must be related to a claimant’s performance of work of a different nature requiring greater exertion, risk or hazard than that to which he or she is normally exposed. R. M. Kerner Co. v. Workmen’s Compensation Appeal Board, 18 Pa. Commonwealth Ct. 282, 335 A.2d 534 (1975).

The record tells us that on the day of Claimant’s accident there was an unusually high number of defective typewriters which Claimant had to remove from the assembly line. Normally, this requires Claimant to place the typewriters in metal shelves located nearby her work station. There are repairmen on the other side of these shelves who then repair the defects. However, due to the unusually high number of defects that day, there was no room on the metal shelves for additional defective typewriters. Hence, Claimant was required to stoop and place the defective typewriters on the floor. Considering these unusual facts, we find ample support for the referee’s conclusion that Claimant sustained a compensable “accident” under the “unusual strain” doctrine.

Next, Olivetti contends that its non-occupational sickness and accident insurance carrier (Aetna Life and Casualty Co.) be given the right of subrogation for payments which it made to Claimant or, in the alternative, that Olivetti and its compensation carrier [468]*468(Travelers Insurance Co.) be given credit on future installments of compensation for what has already been paid. In support of this contention, Olivetti cites Section 319 of the Act, 77 P.S. §671, which states in part:

“Where an employe has received payments for the disability or medical expense resulting from an injury in the course of his employment paid by the employer or an insurance company on the basis that the injury and disability were not compensable under this act in the event of an agreement or award for that injury the employer or insurance company who made the payments shall be subrogated out of the agreement or award to the amount so paid, if the right to subrogation is agreed to by the parties or is established at the time of hearing before the referee or the board.”

This Court has applied the foregoing section to grant an employer’s subrogation claim on behalf of its sickness and accident insurance carrier where the record contained evidence to support the subrogation interest. See United States Steel Corp. v. Workmen’s Compensation Appeal Board, 10 Pa. Commonwealth Ct. 67, 308 A.2d 200 (1973). In this case, there is no evidence of record that a subrogation agreement existed between the parties. Further, in United States Steel, the employer had asserted its claim both in its answer to the compensation petition and on appeal. In this case, although there was testimony that the payments were made by Aetna and not by Olivetti’s compensation carrier, the subrogation claim has been raised for the first time in the appeal to this Court and Aetna has not joined in these proceedings to assert its right of subrogation. See General Tire and Rubber Co. v. Workmen’s Compensation Appeal Board, 16 Pa. Commonwealth Ct. 473, 332 A.2d 867 (1975). We hold that Section 319 of the Act [469]*469is not applicable and we must therefore reject Appellant’s contention that Aetna is subrogated to Claimant’s right to receive compensation payments, from Travelers.

Finally, Appellant claims that it should be given credit against the compensation award for payments made to Claimant by Aetna. In support of its contention, Appellant cites General v. E. Roseman Co., 21 Pa. Commonwealth Ct. 72, 343 A.2d 683 (1975). In General, the employer had paid the claimant $7,-000.00 after a settlement negotiated when the employer filed a termination petition. The claimant had been receiving benefits for total disability for 5 1/2 years prior to this settlement.

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364 A.2d 735, 26 Pa. Commw. 464, 1976 Pa. Commw. LEXIS 1322, Counsel Stack Legal Research, https://law.counselstack.com/opinion/workmens-compensation-appeal-board-v-olivetti-corp-of-america-pacommwct-1976.