8 Pa. Commw. 76 | Pa. Commw. Ct. | 1973
Opinion by
The notable feature of this workmen's compensation cause is that it is, and has been for five years, in a procedural snarl of unprecedented dimensions.
The claimant, Frank J. Gahan, was employed by Connelly Containers to “[take] care of the tool room in conjunction with the boilers and the plant, the heating of the plant and the process steam of the plant and other minor duties attached to that.”
When he filed his petition in March of 1964, the claimant averred that an accident occurred while he was “performing regular duties making special repairs and alterations in boiler room.” A referee found that Mr. Gahan had suffered an accidental injury without specifying whether the occasion was the prying apart of pipes or the pulling of a lever. The Workmen’s Compensation Board rejected the claimant’s testimony as to causation, choosing to believe the carrier’s physician’s testimony that the claimant had not related any incident as causing his symptoms and noting the evidence of a preexisting condition. The Board based its rejection of the claimant’s version of what precipitated his discomfort on the absence of corroboration, citing Buck v. Arndt, 153 Pa. Superior Ct. 632, 34 A. 2d 823 (1943). That case holds that, whether there is or is not evidence of a preexisting condition, the uncorroborated post hac testimony of an employee that while performing his usual work in the usual manner he felt a sharp pain or twisted himself will not support a finding of an accident even though accompanied by the opinion of a physician based upon such assumed history.
We have before us therefore (1) an appeal from an order of the Court of Common Pleas remanding the record to the Board for further proceedings and (2) an appeal from an adjudication of the Board awarding compensation.
The Board’s order must be set aside. First, the Board justifies its reversal of the order of a predecessor Board with the assertion that the former Board had not acted upon the court’s order of remand. This is not so. The old Board responded promptly to the Court’s order which without reference to any docket number of the Board
We come finally to the appeal from the lower court’s order reversing the original Board decision against the claimant and remanding the case to the Board for further hearing and decision. As we have noted, the Board had rejected the claimant’s testimony as to the cause of his injury on the ground it lacked corroboration and the court concluded that the Board had capriciously disregarded corroborative evidence. The court held that statements made by the claimant to various persons concerning his activities immediately preceding the onset of his symptoms were corroborative of the fact that he was injured as he claims. This was error. Such statements are, it is true, corroborative of the fact that at the time the claimant related certain events; they are not, however, corroborative of the fact that those events actually occurred. The requirement of corroborative evidence where the employee, as here, claims to have sustained an unexpected injury while performing his usual work in the usual manner is founded upon the ease with which such assertion can be made and the virtual impossibility of contradicting it. Martin v. Union Collieries Company, 141 Pa. Superior Ct. 93, 14 A. 2d 867 (1940); Toohey v. Carnegie Coal Corp., 150 Pa. Superior Ct. 297, 28 A. 2d 362 (1942); Apker v. Crown Can Company, 150 Pa. Superior Ct. 302, 28 A. 2d 551 (1942); Buck v. Arndt, supra. A claimant’s contemporaneous statements consonant with his recital of events included in histories relied on by his medical
Since this case is now ten years old and should be concluded promptly and because a further appeal would be to this court, we presume to point out what we believe the issues to be.
The claimant asserts in his claim petition and the testimony clearly reveals that he was at his usual work on December 31, 1963. There was no accident in the usual and layman’s understanding of that word. The claimant, therefore, is entitled to compensation only if his injuries were (1) the result of unusual exertion in the performance of a task unusual to his position of employment, or (2) should be found to be the unexpected and unusual pathological result of the performance by the claimant of his usual work in the usual manner. Hence: (1) If the Board, upon rehearing, should find that the claimant’s injuries were the result of unusual exertion expended while performing a task not usual to his job, and if such findings should be supported by competent evidence, compensation would follow by the rule of Durga v. Williams, 89 Pa. Superior Ct. 156 (1926), of which Barber v. Fleming-Raugh, Inc., 208 Pa. Superior Ct. 230, 222 A. 2d 423 (1966), and Sosna v. Ford Motor Co., 192 Pa. Superior Ct. 456, 161 A. 2d 657 (1960), are additional examples. We are constrained to comment, however, that the record as now constituted contains slight, if any, proof that any work performed by the claimant on December 31, 1963 was a deviation
We affirm rather than quash the appeal from the court’s order of remand because we believe that the court’s opimon and order taken together amounted to direction of the award of benefits to the claimant. Strickland v. Baugh & Sons Company, 139 Pa. Superior Ct. 273, 11 A. 2d 547 (1939); Messikomer v. Baldwin Locomotive Works, 178 Pa. Superior Ct. 537, 115 A. 2d 853 (1955); Barber v. Fleming-Raugh, Inc., supra. Because, however, the case went off on the matter of corroboration, mistakenly believed to be supplied by prior consonant statements, and because no findings have been made pertaimng to the issues of unusual
Order
In addition to the numerous appeals taken below, the claimant has filed in this court not only a motion to quash the appeal from the order of the court below but a motion to dismiss the appeal from the order of the Board. The motion to quash is dismissed for the reasons aboye set forth, and the motion to dismiss, which assumes the propriety of the Board’s order which we have found lacking in authority, is denied.
The order of the Court of Common Pleas of Philadelphia County to No. 245 C.D. 1972 is affirmed. On remand, the Board shall proceed in accordance with this opinion.
The appeal of the defendant from the decision of the Workmen’s Compensation Board to No. 568 C.D. 1972 is sustained and the Board’s order is set aside.
This is claimant’s description of his duties. The name of the position is given as “operating engineer” or “stationary engineer.”
The Board had assigned numbers to each the claim petition and the petition for rehearing. All of the proceedings in the Court of Common Pleas had been assigned the same number.
What record the Board may have had before it in mating this decision is shrouded in mystery. Some months after it acted, no record papers could be found in the files of either the Board or the lower court, and we have before us a stipulated reconstruction from the files of counsel.