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DAVIS v. MERCK & CO. (03/14/50)

March 14, 1950

DAVIS
v.
MERCK & CO., INC. ET AL.



COUNSEL

Alexander F. Barbieri, Philadelphia, for appellant.

Frederick L. Fuges, Philadelphia, for appellees.

Before Rhodes, P. J. and Hirt, Dithrich, Ross, Arnold and Fine, JJ.

Author: Arnold

[ 166 Pa. Super. Page 430]

ARNOLD, Judge.

This is a workmen's compensation case with a welter of petitions, answers, etc., -- a record which we will attempt to simplify. The court of common pleas, principally on the theory of res judicata, affirmed the board's order sustaining the referee's dismissal of claimant's petition. Hence this appeal.

The claimant was injured and entered into an agreement for compensation, after which a supplemental agreement was executed November 8, 1944, calling for payments of compensation to December 27, 1944, for the specific loss of the little finger.

On December 19, 1944, -- before the supplemental agreement had expired, -- the claimant filed a petition to review the agreement, alleging that in addition to the loss of the little finger of the left hand he did 'not have

[ 166 Pa. Super. Page 431]

    full industrial use of * * * the middle finger an [had] no feeling in the top of the thumb of the left hand.' This was heard April 4, 1945, the claimant had no counsel, but the insurance carrier was represented. Dr. Harry Hudson was called by the carrier and his testimony undoubtedly established disability in addition to that provided for in the supplemental agreement. Nevertheless the referee found as a fact: 'Claimant's disability * * * is confined to the industrial loss of the left little finger'; and as a conclusion of law: 'Since claimant suffers no disability beyond the industrial loss of the left little finger * * * the petition should not be granted.'

On December 6, 1946, claimant filed two petitions with the board. The one prayed for an appeal nunc pro tunc, alleging that he had never received a copy of the referee's decision of May 24, 1945, and averred that he now suffered the loss of the use of the left hand. The other (No. 91384) was a 'petition to review provisions of existing compensation agreement.' It, too, alleged that the claimant had not received a copy of the referee's decision, and that claimant had lost the use of the left hand. The latter petition was thereafter amended to be considered as a petition to set aside the final receipt.

The appeal nunc pro tunc was refused by the board, and rightly so, since the only excusatory matter alleged was (a) that he never received a copy of the referee's decision; (b) that 'it is not unusual for claimant to fail to receive mail, although it may be properly addressed to him'; (c) that claimant lives in a three-story house converted into apartments, with no mail boxes, and the mail is thrown by the carrier on the floor of the vestibule, and children have often taken the mail and destroyed it; (d) that in warm weather the vestibule door is left open and tradesmen have 'kicked the mail around'; ...


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