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FOX v. AMERICAN NEWS COMPANY ET AL. (06/10/59)

June 10, 1959

FOX
v.
AMERICAN NEWS COMPANY ET AL., APPELLANTS.



Appeal, No. 20, April T., 1959, from order of Court of Common Pleas of Fayette County, June T., 1958, No. 276, in case of Phillip W. Fox v. The American News Company et al. Order affirmed.

COUNSEL

James F. Manley, with him James J. Burns, Jr., for appellants.

Henry R. Beeson, with him Higbee, Lewellyn & Beeson, for appellee.

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

Author: Gunther

[ 190 Pa. Super. Page 75]

OPINION BY GUNTHER, J.

In this workmen's compensation case, the lower court affirmed the decision of the Workmen's Compensation Board which affirmed the findings of fact and conclusion of law of the referee and dismissed the appeal. The facts are not in serious dispute.

The claimant, Phillip W. Fox, was an employe of The American News Company, one of the appellants, as a clerk. On December 31, 1956, while loading a charge table with magazines, he was overcome by carbon monoxide gas which resulted in serious carbon monoxide poisoning. The parties subsequently entered into a compensation agreement, filed of record, under which claimant was paid compensation for a total disability at the rate of $28.00 per week from January 7,

[ 190 Pa. Super. Page 761957]

until May 6, 1957. On April 8, 1957, claimant attempted to return to work and did work for a period of three days, but because of recurring pains in the chest and continuous headaches, he could not continue. On July 17, 1957, appellants filed a termination petition, alleging that the disability of the claimant had ceased on April 8, 1957, when he returned to work. An answer was filed in which the allegation was denied, and the matter was called for hearing on October 29, 1957. The only evidence produced at that hearing for and on behalf of appellants, was the testimony of Dr. D. J. Carpenter, a general practitioner, who testified that he first examined the claimant January 9, 1957, at which time he was of the opinion that the disability as a result of carbon monoxide poisoning had primarily or basically terminated. Thereafter, approximately once a month from February through April, 1957, he examined the claimant and continued to receive the same complaints. The doctor could not find evidence of continuing disability which an examination of claimant would disclose.

Based on this testimony of the doctor, the referee found that claimant's disability had in fact not ceased and dismissed the petition to terminate. The board, on appeal, affirmed the referee, and the court below affirmed the board.

Since the decision of the board in the instant case was against the party having the burden of proof, the question before us on appeal is whether the board's findings of fact are consistent with each other and with the conclusions of law and can be sustained without a capricious disregard of the competent evidence. Rodgers v. Methodist Episcopal Hospital, 188 Pa. Superior Ct. 16, 145 A.2d 893; Zilek v. C.C. Coal Company, 186 ...


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