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GOULD v. WOOD (ET AL. (12/12/62)

December 12, 1962

GOULD
v.
WOOD (ET AL., APPELLANT).



Appeal, No. 173, April T., 1962, from order of Court of Common Pleas of Armstrong County, June T., 1960, No. 356, in case of Arthur Daniel Gould v. William B. Wood et al. Order affirmed.

COUNSEL

Charles F. McKenna, with him E. S. Lawhorne, Associate Counsel, R. D. Holahan, Counsel, State Workmen's Insurance Fund, Alan Miles Ruben, Deputy Attorney General, and David Stahl, Attorney General, for appellant.

James G. Callas, with him Callas and Millard, for appellee.

Before Rhodes, P.j., Ervin, Wright, Watkins, Montgomery, and Flood, JJ. (woodside, J., absent).

Author: Flood

[ 200 Pa. Super. Page 187]

OPINION BY FLOOD, J.

In this workmen's compensation case, following the board's refusal of compensation to the claimant and its denial of his petition for rehearing, the court below referred the case back to the board with directions to afford the claimant a full and complete rehearing.

The record discloses that the claimant was employed by the defendant as a tool dresser on a gas well rig and sustained injuries in the course of his employment on March 19, 1957, when he was thrown from the rig by an explosion of the gas well. Thereafter, on June 8, 1957, he sustained further injuries when he was attempting to lift the "leg of the mast" on the rig.

The referee found that the claimant had suffered from a diaphragmatic hernia since 1952 and that the

[ 200 Pa. Super. Page 188]

    two accidental injuries in 1957 aggravated this condition, causing him to become totally disabled from June 8, 1957. The board affirmed the finding as to the existence of the hernia since 1952, but found the medical testimony insufficient to sustain a finding that the accidents caused the disability and found the disability to be due to the pre-existing degenerative conditions and not the accidents. The petition for rehearing, as amended, contained an affidavit of Dr. Regis A. Wolff, an internal specialist, that he first treated the claimant in April 1959, that x-ray examination disclosed no evidence of hiatus hernia, and that a gastric ulcer was found "but the major cause of this man's distress was diagnosed as post traumatic exhaustion." The board denied a rehearing on the ground that the affidavit failed to support the claimant's allegation that Dr. Wolff attributed the claimant's condition to the accident of March 19, 1957.

The court below, in referring the case back for rehearing noted that the medical testimony was confused and confusing, that the doctors should have been asked definitely whether, in their professional opinion, the hiatus hernia had any connection with either of the accidents, that Dr. Kent, who also treated the claimant was not called, that there was no evidence whatever that the defendant was suffering from a hiatus hernia in 1952, but that the only evidence concerning this is hearsay and to the contrary, and that in view of this erroneous finding which is the very basis of the board's conclusion, it is obvious that there should be a rehearing upon the matter.

No appeal was taken from the original order of the board denying compensation. The later order refusing rehearing was within the board's discretion and is reversible only for an abuse of discretion: Conti v. Butler Consolidated Coal ...


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