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KRACOSKI v. BERNICE WHITE ASH COAL CO. (03/20/57)

March 20, 1957

KRACOSKI
v.
BERNICE WHITE ASH COAL CO., INC., APPELLANTS.



Appeal, No. 101, Oct. T., 1956, from judgment of Court of Common Pleas of Sullivan County, Jan. T., 1956, No. 14, in case of Joseph Kracoski v. Bernice White Ash Coal Co. et al. Judgment affirmed.

COUNSEL

E. C. Marianelli, with him Warren M. Jones, for appellant.

Penrose Hertzler, for appellee.

Before Rhodes, P.j., Gunther, Wright, Woodside, Ervin, and Carr, JJ. (hirt, J., absent).

Author: Rhodes

[ 183 Pa. Super. Page 157]

OPINION BY RHODES, P.J.

In this workmen's compensation case the claimant, Joseph Kracoski, was accidentally injured while in the employ of the defendant, Bernice White Ash Coal Co., Inc., on November 19, 1952. At that time claimant, while in the course of his employment, attempted to lift a rock under which a fellow employe was pinned. He felt a pain in his lower back and suffered a lumbosacral sprain or strain which resulted in a partial protrusion of the disc at the L-5 vertebra. Although he was partially disabled on this occasion he was able to work and suffered no loss of earnings. Defendant's insurance carrier was the Pennsylvania Threshermen and Farmers' Mutual Casualty Insurance Company, appellant, hereinafter called "Farmers." Claimant received treatments for this injury and continued working until a second incident. On March 30, 1953, while claimant and another were attempting to replace a derailed mine car upon the track, he again felt a pain

[ 183 Pa. Super. Page 158]

    in the region of the fifth lumbar vertebra. The disc, which had previously partially protruded, was now completely ruptured. The Workmen's Compensation Board found that the 25 per cent partial disability was thereupon increased to total disability which lasted until August 10, 1953, after which his partial disability apparently did not result in any loss of earning power. On the date of the second incident defendant was insured by the Coal Operators Casualty Company, appellee, hereinafter called "Coal Operators." Claimant filed two claim petitions, one for each of the alleged accidents.*fn1 A hearing was held before a referee on October 26, 1953, on the petition relating to the first incident. Defendant was represented at this hearing by counsel for Farmers; Coal Operators was not represented and it did not participate in this first hearing. On April 29, 1954, a hearing was held on the petition relating to the second incident at which time defendant was represented by counsel for Coal Operators; Farmers' counsel did not attend. At this second hearing, on motion of counsel for claimant, the referee ruled that both petitions would be heard upon a common record. Consequently, at the third and final hearing before the referee, counsel for both insurance companies participated and agreed to the use of a common record. Although he had heard both petitions in common, the referee made a separate disposition of each petition. The referee found that the first injury was accidental and caused the initial partial disability and the subsequent total disability to August 10, 1953; that claimant's total disability, subsequently changed

[ 183 Pa. Super. Page 159]

    to 25 per cent partial, was the result of a recurrence on March 30, 1953, and not accidental in origin.

Farmers, which was held liable by the referee, filed an appeal with the board from the award on the claim petition covering the first incident. No appeal was taken by anyone from the formal disallowance of compensation by the referee on the second claim petition. Claimant obviously was not required to appeal as he had an award in his favor which fully covered his disability and which was in accord with the medical testimony presented by him and by defendant. On appeal by Farmers, the board, acting without notice to Coal Operators, held two hearings and made inconsequential changes in the referee's findings of fact concerning the second incident. But the board was of the opinion that the second incident was an accident within the meaning of the Workmen's Compensation Act; and it ordered Coal Operators instead of Farmers to pay the compensation. Coal Operators then appealed to the Court of Common Pleas of Sullivan County which in turn reversed the board on its conclusions of law and entered judgment for claimant against defendant and Farmers. See Puskarich v. Puskarich, 174 Pa. Superior Ct. 581, 583, 102 A.2d 191. This appeal by Farmers followed.

There is no contention on this appeal that claimant did not sustain an accidental injury on November 19, 1952, or that he did not at that time suffer a lumbosacral sprain or strain with protrusion of the disc which later ruptured. Both the referee and the board found these facts, and Farmers does not question the findings. Farmers' contention is that the second incident was a separate accident which aggravated the ...


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