Lead Opinion
OPINION OF THE COURT
This is аn appeal from a final order of the Commonwealth Court, which reversed a Workmen’s Compensation Appeal Board (bоard) award to appellant, John Z. Fry. We granted allocatur and now reverse the Commonwealth Court.
The facts surrounding this appеal are as follows: On August 9, 1969, appellant suffered a compensable back injury while employed as a truck driver for appеllee Calcite Quarry Corporation. Orthopedic surgery was performed by Dr. Thomas Forker, resulting in the removal of four herniated disсs. Appellant then returned to work as a truck driver on March 16, 1970, under instructions from Dr. Forker not to lift anything weighing more than twenty-five to thirty-five pounds, аnd he was also required to wear a back brace. Appellee-employer was aware of these restrictions, which wеre still in effect at the time of the injury involved in this appeal.
On January 15, 1971, appellant sustained further back injuries while unloading one-hundred-pound bags of salt from the tailgate of one of appellee’s trucks. As a result of these injuries, on April 23, 1971, a lumbosacral spine fusiоn was performed by Dr. Forker on the same area of the back previously injured. Appellant was discharged from the hospital оn May 21, 1971. On July 14, 1971, appellant suffered a heart attack which Dr. Forker related to appellant’s back injury.
On March 29, 1971, appellant filеd a claim with the Bureau of Workmen’s Compensation, Pennsylvania De
Appellant first argues that the Commonwealth Court erred in not sustaining the findings of the referee and the board that on January 15, 1971, an “accident” occurred within the ambit of the “unusual strain doctrine” which would allow recovery under the Workmen’s Compensation Act.
Both parties agree that on January 15, 1971, appellant incurred a back injury while unloading one-hundred-pound bags of salt from the tailgate of one of appellee’s trucks. The controversy is centered around whether this injury constitutes an “accident” within the “unusual strain doctrine” and, therefore, is a compensable injury under the Workmen’s Compensation Act. An “accident” within the “unusual strain doctrine” occurs when a claimant suffers an injury resulting from overexertion or an unusual strain from an activity which is not within his normal work duties. See Hamilton v. Procon, Inc.,
“2. On January 15, 1971, the [appellant] Claimant was helping to unload a truckload of salt. The salt was packed in bags weighing 100 pounds. In the prоcess of doing so the Claimant injured his back.
“3. As a result of said accident and injury, the Claimant was disabled and not able to work for the pеriod beginning January 15,1971 to the present.”
To support a finding that the injury was within the meaning of the “unusual strain doctrine,” appellant testified that sinсe he began his employment with appellee in 1969, he had never loaded or unloaded trucks; rather, he was only a truck driver. Further, Gеorge Patton, president of appellee corporation, testified only as to the general duties of truck drivers, not the wоrk performed by appellant. Under these facts we agree with the referee that the injury was within the “unusual strain doctrine.”
Appellаnt finally argues that the Commonwealth Court erred in finding insufficient evidence to sustain the findings of the referee that there was a relationship between the injury of January 15, 1971, and appellant’s heart attack of July 14, 1971. We agree. Appellant presented Dr. Forker, the orthopedic surgeon who performed the two lower back operations. He stated that in his opinion the two back operations were contributing causes to the emotional stress and anxiety which caused the heart attack. While Dr. Forker was not the attеnding physician for appellant at the time of his treatment in the intensive care unit, he was familiar with appellant’s medical baсkground, and in Dr. Forker’s medical opinion there was a causal connection between appellant’s back injury and heart attack. That finding was accepted by the referee and affirmed by the board and we find no reason to disturb that finding. See Utter v.
Order of the Commоnwealth Court reversed. Order of the Workmen’s Compensation Board is reinstated.
Concurrence Opinion
(concurring).
In his findings of fact in support of his award to appellant, the referee found:
“6. The Claimant and Defendant stipulated the Claimant did sustain an injury to his back as a result of the accident on January 15, 1971, and that Claimant is entitled to the benefits of the Pennsylvania Workmen’s Compensation Act because of his back injury.”
Because appellees failed to except to finding no. 6 in their appeal to the Workmen’s Compensation Board, they are preсluded from arguing on appeal that appellant did not sustain a compensable injury to his back. See Walker v. Nu-Car Carriers, Inc.,
Notes
“There is absolutely no basis in the record for finding of fact No. 6. . . .
“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.”
Calcite Quarry Corp. v. Workmen’s Compensation Appeal Board,
Dissenting Opinion
(dissenting).
My review of the record satisfies me that there was no competent evidence to sustain the finding of fact and the conclusion of law that the аppellant’s coronary condition was causally related to the injury of January 15, 1971. My position in this respect is well stated by Judge Wilkinson in speaking for the Commonwealth Court majority (a position with which the dissenters in that court also agreed). Calcite Quarry Corp. v. Workmen’s Compensation Appeal Board,