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GALLIHUE v. AUTO CAR COMPANY ET AL. (11/12/57)

November 12, 1957

GALLIHUE
v.
AUTO CAR COMPANY ET AL., APPELLANTS.



Appeal, No. 323, Oct. T., 1957, from order of Court of Common Pleas No. 6 of Philadelphia County, June T., 1956, No. 5740, in case of James Lee Gallihue v. The Auto Car Company et al. Order reversed; reargument refused November 26, 1957.

COUNSEL

Frank R. Ambler, for appellants.

Nicholas G. Petrella, for appellee.

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

Author: Wright

[ 184 Pa. Super. Page 599]

OPINION BY WRIGHT, J.

This is a workmen's compensation case in which the Board, affirming the Referee, granted the employer's petition to terminate an agreement for the reason that claimant's disability as a result of the accident had ceased. The court below reversed the Board and remitted the record for further hearing and determination. The employer has appealed. We are in accord with appellant's position that, under the circumstances, the order of remission was not interlocutory. See

[ 184 Pa. Super. Page 600]

"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. 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. Darmstadter's testimony as to his diagnosis and the connection between the injury and claimant's condition on July 22, 1945, was excluded by the referee on the ground that the only issue was the claimant's condition on October 9, 1944, and the witness had not seen the claimant until seven months later. It was clearly error on the part of the referee to exclude this testimony. It was competent and relevant and, although its weight is and will be for the compensation authorities, it should have been admitted".

Dr. Darmstadter subsequently testified that "there is a direct relationship between the accident and the disability". Dr. Krause testified that appellee was suffering from a "traumatic lesion of the lumbro-sacral element of the back", and that "the accident of May 11, 1944, was the direct cause". On the other hand, Dr. Ornsteen gave further testimony in support of his original conclusion. Dr. Wilson also testified on behalf of appellant. Referee Keating, who had succeeded Referee Clayton, again found as a fact "that all disability of the claimant as a result of the accident of May 11, 1944, ceased on October 9, 1944", and therefore granted the petition to terminate. Upon appeal to the Board, that tribunal was of the opinion "that the defendant had met the burden of proof required", and accordingly affirmed the Referee's findings of fact, conclusions of law, and order of termination.

Upon appeal to the Court of Common Pleas No. 6 of Philadelphia County, the ...


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