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ALLEN v. PATTERSON-EMERSON-COMSTOCK (01/17/56)

January 17, 1956

ALLEN, APPELLANT,
v.
PATTERSON-EMERSON-COMSTOCK, INC.



Appeal, No. 174, April T., 1955, from judgment of County Court of Allegheny County, 1954, No. A 1203, in case of Mrs. Elizabeth Bowden Allen v. Patterson-Emerson-Comstock, Inc. Judgment reversed. Appeal by claimant from decision of Workmen's Compensation Board refusing award.

COUNSEL

William J. Krzton, with him Louis Vaira, for appellant.

Murray J. Jordan, with him Fred J. Jordan, for appellee.

Before Rhodes, P.j., Hirt, Ross, Gunther, Wright, Woodside, and Ervin, JJ.

Author: Rhodes

[ 180 Pa. Super. Page 288]

OPINION BY RHODES, P.J.

In this workmen's compensation case the wife claimant alleged that her husband's death resulted from injuries sustained in a fall while in the employ of defendant. The referee disallowed compensation. The Workmen's Compensation Board affirmed the referee; and the County Court of Allegheny County affirmed the board's order of disallowance.

The facts as established by the evidence are not in dispute. Testimony of claimant and her witnesses was uncontradicted. The defendant-employer presented no evidence. Thomas W. Allen, deceased husband of claimant, was employed by defendant at the mill of the Pittsburgh Steel Company, Monessen, Pennsylvania. On October 19, 1951, while ascending a flight of stairs, he turned and fell, face down, to the concrete floor below. Before falling he had taken about two steps up the stairway. After the fall his face was skinned and bruised and he was bleeding in the region of his eye and nose. He was taken by ambulance to a hospital where he was examined by a doctor, but he had died on the way. Deceased's death occurred about 3:30 p.m., but claimant was not notified of this fact until about 7:30 that evening, when she was informed of her husband's death by a foreman of the defendant-employer and another employe. Deceased was apparently in good health, and as far as the testimony shows was a sound, healthy individual. There was no testimony as to the cause of his death.

Prior to deceased's death, claimant resided with him at 801 West Main Street, Monongahela City, Pennsylvania. Immediately after his death claimant moved to North Carolina, and is presently living in Rocky Point in that state. Claimant testified she mailed the claim petition on October 5, 1952. It was mailed from Burgaw, North Carolina, but was not received by the board

[ 180 Pa. Super. Page 289]

    until October 20, 1952. This was one day beyond the statutory limitation which provides that such claims are barred unless filed within one year after the accident. See section 315 of the Workmen's Compensation Act of June 2, 1915, P.L. 736, as amended, 77 PS ยง 602.

The referee, in his order of disallowance of compensation, found that the claim petition was filed on October 20, 1952, more than one year after the date of the alleged accidental injury; and that the deceased did not sustain an accidental injury while in the course of his employment. These findings of fact were affirmed by the board. The board in its discussion observed that no medical testimony had been produced by claimant to establish any connection between the alleged accident and the subsequent death.

Apparently after the appeal had been taken to the County Court of Allegheny County from the board's order of disallowance but before final action by that court, claimant petitioned the board for a rehearing, offering to prove by competent medical authority that deceased died as the result of the fall and not as the result of any pre-existing condition. The board denied the petition and refused to grant a rehearing, indicating that claimant had adequate opportunity to present such medical testimony in support of her claim. The board's action in this matter seems to have been based on ...


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