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GALLIHUE v. AUTOCAR CO. ET AL. (07/19/51)

July 19, 1951

GALLIHUE
v.
AUTOCAR CO. ET AL.



COUNSEL

David L. Ullman, Philadelphia, for appellant.

Frank R. Ambler, Philadelphia, for appellee.

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

Author: Ross

[ 169 Pa. Super. Page 304]

ROSS, Judge.

In this workmen's compensation case the claimant has appealed from an order terminating an open agreement for compensation.

On May 11, 1944, the claimant, Gallihue, suffered an accidental injury while in the course of his employment. On August 28, 1944, he and his employer entered into an open agreement for compensation for total disability, under which compensation was paid to the claimant to October 8, 1944. On November 9, the defendant

[ 169 Pa. Super. Page 305]

    filed a petition to terminate, averring that the claimant's disability had ceased on October 8. After the claimant filed an answer denying that he had recovered from his injuries and averring that he still suffered partial disability, hearings were held by the referee, who found as a fact that claimant's disability had ceased on October 8 and concluded that the claimant was not entitled to further compensation. The referee's findings and conclusion of law were affirmed by the board, claimant's appeal to the Court of Common Pleas of Philadelphia County was dismissed, and this appeal followed.

The appellant advances two contentions: (1) that there was no substantial evidence to support the referee's finding of fact that claimant's disability had ceased, and (2) that certain medical testimony sought to be introduced by him was improperly excluded.

Appellant's first contention is without merit. From our examination of the record we are convinced that there is substantial competent evidence to support the finding.*fn1 We do not deem it necessary to review this supporting evidence since our further conclusion is that appellant's second contention is sound and the case must be remitted for further hearing.

Dr. Herbert J. Darmstadter was called as a witness by the claimant. He first saw the claimant on July 22, 1945, saw him on a number of occasions thereafter and was still treating him at the time of the last hearing, which was on September 18, 1946. The witness testified at considerable length relative to the history of the case ...


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