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FRIEL. v. SUN SHIPBUILDING & DRYDOCK CO. (12/29/53)

December 29, 1953

FRIEL.
v.
SUN SHIPBUILDING & DRYDOCK CO.



COUNSEL

Philip Richman, Philadelphia, Frank I. Ginsburg, Chester, Richman & Richman, Philadelphia, for appellant.

J. Allen Hodge, Hodge, Hodge & Balderston, Chester, for appellee.

Before Rhodes, P. J., and Hirt, Reno, Ross, Gunther, Wright, and Woodside, JJ.

Author: Ross

[ 174 Pa. Super. Page 320]

ROSS, Judge.

In this workmen's compensation case claimant, James Friel, seeks compensation for the loss of the index

[ 174 Pa. Super. Page 321]

    and middle fingers of his left hand by an accident which occurred while he was in the employ of Sun Shipbuilding and Drydock Company, a self-insured employer. Compensation was awarded by the referee. The employer appealed to the Board and its appeal was sustained and the claim petition dismissed. Claimant thereupon appealed to the Court of Common Pleas of Delaware County, which affirmed the Board, and the claimant took this appeal.

The referee made, among others, the following findings of fact: '3. That on March 18, 1949 the claimant while in the employ of the defendant was struck on the head by a tube at 3 A.M., he had to go home with pains in the head. 4. That the next morning at 2 A.M. he came back to work for a dressing after which he left, and as he was crossing the railroad tracks, outside the gate, he blacked out -- an engine passed by after which he was picked up and taken to a hospital. 5. That as a result of this accident the claimant sustained a loss of the index and middle fingers of the left hand.' On these facts the referee, as stated above, made an award of compensation.

The Board vacated the third and fourth findings of fact of the referee and substituted the following: 'Third: We find as a fact that, on March 17, 1949, claimant was struck on the head while acting within the course of his employment with the defendant herein, as a result of which claimant suffered a superficial laceration of the head. Fourth: We further find as a fact that, on the morning of March 18, 1949, while claimant was on the second track of a series of tracks under the possession and control of the Pennsylvania Railroad Company, he was struck by an engine of the Pennsylvania Railroad Company which was running on the second track, as a result of which occurrence claimant sustained certain injuries which necessitated

[ 174 Pa. Super. Page 322]

    the removal of the index and middle fingers of the left hand.'

The Board found as additional facts that the tracks upon which claimant was struck were not controlled or owned by defendant and that the tracks were not 'so connected with the business of the defendant as to form a component or integral part of its business'. Finally, the Board found that claimant failed to establish that he sustained the injury which led to the amputation of his fingers while he was 'actually engaged in the furtherance of the business or affairs of his employer or that his presence was required there by the nature of his employment'. On the basis of its own findings of fact the Board concluded: 'Since claimant was injured off the premises of his employer and since the testimony discloses that, at the time of the occurrence, claimant was not engaged in the furtherance of the ...


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