Calcite Quarry Corp. v. Workmen's Compensation Appeal Board

322 A.2d 403, 14 Pa. Commw. 347, 1974 Pa. Commw. LEXIS 829
CourtCommonwealth Court of Pennsylvania
DecidedJuly 18, 1974
DocketAppeal, No. 1396 C.D. 1973
StatusPublished
Cited by4 cases

This text of 322 A.2d 403 (Calcite Quarry Corp. v. Workmen's Compensation Appeal Board) 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
Calcite Quarry Corp. v. Workmen's Compensation Appeal Board, 322 A.2d 403, 14 Pa. Commw. 347, 1974 Pa. Commw. LEXIS 829 (Pa. Ct. App. 1974).

Opinions

Opinion by

Judge Wilkinson,

This is an appeal by the employer and its insurance carrier from an award by the referee, sustained by the [349]*349Workmen’s Compensation Appeal Board. The basis for the appeal is twofold: (1) that there is no competent evidence on which the referee or the Board could find that an accident occurred; and (2) assuming an accident, that there was no competent evidence on which to base a finding that the accident was the cause of the total disability. We must agree with appellants and reverse the Board.

The claimant-appellee suffered an injury to his back as a result of a compensable accident on August 9, 1969. Compensation was paid until March 16,1970. In response to a question from the referee, claimant-appellee’s counsel agreed that other than showing a preexisting back injury, that accident had no relationship to this claim.

Claimant-appellee returned to his previous work on March 16, 1970, but with the admonition from his orthopedic surgeon that he limit himself to light work, so as to “give him a chance to progressively increase his activities.” He progressed and was “tentatively discharged” by his orthopedic surgeon, who testified that he did not hear from claimant-appellee for six months prior to January 15, 1971. Claimant-appellee worked during the period March 16, 1970, to January 15, 1971, as a truck driver, progressively driving larger trucks and returning to full duty. On January 15, 1971, without objection from him, he was assigned the routine task of unloading 100 pound bags of salt from a trailer. This was the first time he had lifted 100 pound bags since his injury. He felt a pain in his back after lifting two bags and immediately stopped. He went to the company doctor who referred him to the orthopedic surgeon. He was under the orthopedic surgeon’s care from January 16, 1971, until he was about ready to return to work when he suffered a heart attack on July 14, 1971. As a result of the heart attack, he continues to [350]*350be totally disabled. Tbe referee made tbe following findings of fact:

"...
“2. On January 15,1971, the Claimant was helping to unload a truckload of salt. Tbe salt was packed in bags weighing 100 pounds. In tbe process of doing so tbe Claimant injured bis back.
“3. As a result of tbe said accident and injury, tbe Claimant was disabled and not able to work for the period beginning January 15, 1971 to tbe present.
“4. As a result of tbe accident and injury sustained by tbe Claimant on January 15, 1971, tbe Claimant became anxious about not being able to work and support bis famiily to such an extent that be developed a serious coronary condition from which be still suffers and which renders him totally disabled.
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“6. Tbe Claimant and Defendant stipulated tbe Claimant did sustain an injury to bis back as a result of tbe accident on January 15, 1971, and that Claimant is entitled to tbe benefits of tbe Pennsylvania Workmen’s Compensation Act because of bis back injury.
“7. Tbe injury to tbe Claimant’s back and tbe coronary condition of tbe Claimant together with tbe subsequent disability of tbe Claimant was causally related to tbe incident set forth in Finding of Fact No. 2.”

Tbe referee made tbe following conclusions of law: “Tbe Referee concludes as a matter of law that tbe Claimant has sustained bis burden of proving an accident within tbe meaning of tbe Pennsylvania Workmen’s Compensation Act and is therefore entitled to tbe benefits thereof. Tbe Referee further concludes as a matter of law that both tbe back injury and tbe coronary condition were causally related to tbe accident of January 15, 1971.”

Tbe only witnesses who testified were claimant-appellee, claimant-appellee’s orthopedic surgeon, and the president of tbe employer company.

[351]*351There is absolutely no basis in the record for finding of fact No. 6. There is a stipulation with regard to the accident which occurred on August 9, 1969. However, counsel for appellants carefully and at every opportunity objected to any inference that there had been an accident on January 15, 1971. For example, when claimant-appellee’s attorney asked the orthopedic surgeon whether there was a relationship between the accident of January 15, 1971, and the coronary attack, appellants’ counsel objected on the ground that an accident had not been proved. The referee suggested the question be rephrased and claimant-appellee’s counsel rephrased the question, substituting the word “incident” for the word “accident.” In his brief before the Board and before this Court, claimant-appellee’s counsel attempted to justify finding of fact No. 6 by stating that after the hearing had closed, there was a conversation in which representatives of the employer and the insurance carrier admitted an accident occurred. From this, according to claimant-appellee’s attorney, “it can only be concluded that the referee made a notation of this for his own purposes but failed to have it entered into the record.” Surely no one could seriously propose that the referee’s recollection of a casual conversation after the hearing had been completed and the record closed should be the basis for a finding that the parties had stipulated that an accident had occurred! In our opinion, we would be considerably more justified in concluding that the referee was confusing the stipulated accident of August 9, 1969, and the unstipulated, but alleged and contested, accident of January 15, 1971.

For this reason alone, the referee’s award must be reversed, for absent finding of fact No. 6, there is no finding of an accident, compensable or otherwise.

The Board did not make any findings, but merely affirmed the findings of the referee. The Board, in its opinion, discussed and concluded that there was com[352]*352petent evidence to support a finding of an accident on the unusual strain doctrine as laid down in Hamilton v. Procon, Inc., 434 Pa. 90, 252 A. 2d 601 (1969). Laying aside the fact that no such finding was made, we cannot agree that one, if made, would he supported by competent evidence. No argument is made, nor could there be one, that the unusual pathological result doctrine applies. In Hamilton, supra, the over-exertion was caused by an unusual condition of mud and terrain in which the claimant was working, i.e., unusual working conditions. They were not unusual for others working there, but they were unusual for the claimant who had only worked in them for a few days. In the instant case, unloading 100 pound bags was not unusal for other truck drivers, nor for the claimant-appellee other than he had not had occasion to unload them since his last injury, so as to allow the last injury to heal.

Appellants’ second objection is equally well-founded. There is no competent evidence to sustain finding of fact No. 4 and the conclusion of law that the coronary condition was causally related to the incident of January 15, 1971. The only evidence offered to show such causal relationship was that of claimant-appellee’s orthopedic surgeon. While this doctor’s qualification as an orthopedic surgeon was admitted, his qualification to express an opinion as a heart specialist was challenged repeatedly and emphatically.

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Related

Workmen's Compensation Appeal Board v. Czepurnyj
340 A.2d 915 (Commonwealth Court of Pennsylvania, 1975)
Workmen's Compensation Appeal Board of the Commonwealth v. Hoffman
339 A.2d 188 (Commonwealth Court of Pennsylvania, 1975)
Fry v. Calcite Quarry Corp.
334 A.2d 258 (Supreme Court of Pennsylvania, 1975)

Cite This Page — Counsel Stack

Bluebook (online)
322 A.2d 403, 14 Pa. Commw. 347, 1974 Pa. Commw. LEXIS 829, Counsel Stack Legal Research, https://law.counselstack.com/opinion/calcite-quarry-corp-v-workmens-compensation-appeal-board-pacommwct-1974.