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LIEBERMAN v. SUNRAY DRUG COMPANY (11/12/64)

decided: November 12, 1964.

LIEBERMAN
v.
SUNRAY DRUG COMPANY, APPELLANT



Appeal from judgment of Court of Common Pleas No. 7 of Philadelphia County, Dec. T., 1963, No. 3987, in case of Ida Lieberman, widow of Louis Lieberman, v. Sunray Drug Company.

COUNSEL

Samuel Kagle, with him Oscar Brown, for appellant.

John Francis Gough, with him Sheer, McDevitt & Mazzocone, for appellee.

Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ. (Rhodes, P. J., absent). Opinion by Watkins, J.

Author: Watkins

[ 204 Pa. Super. Page 350]

This is an appeal from the judgment of the Court of Common Pleas No. 7 of Philadelphia County, entered in favor of Ida Lieberman, the widow of the deceased claimant, Louis Lieberman, the appellee, and against Sunray Drug Company, the employer appellant, in a workmen's compensation case.

The claimant decedent, aged 61 years, was a carpenter and prior to the accident had never lost a day in twenty-three years. He was severely injured while in the course of his employment on April 5, 1956. His injuries were the result of a fall while inspecting a ceiling and included a fractured dislocation of his left hip and injury to his chin, an injury to his right shoulder and a nerve injury involving his leg. On June 5, 1956 he was taken from the hospital to his home where he was provided with a hospital bed. His major difficulty was a form of paralysis from the nerve injury involving his broken hip on the left side. An agreement was entered into between employer and employee by which the decedent received compensation for total disability until February 4, 1957. For some time, because of confinement, he was becoming acutely depressed and on the advice of his orthopedic surgeon he returned to supervisory work while still on crutches

[ 204 Pa. Super. Page 351]

    with the hope that such activity might prove a therapeutic benefit. He so worked until February 22, 1957 at which time he suffered a cerebral vascular accident for which he was again hospitalized and died on June 21, 1957.

The widow filed her claim petition and the referee awarded benefits. This award was appealed to the board and was vacated on the ground that the decedent's death was not related to the April 5th accident.

After the claimant had appealed to the court below, the board granted a rehearing and the case was remanded for this purpose. The action of the board on a petition for a rehearing, while an appeal is pending, is statutory and within the sound discretion of the board. The board, upon rehearing and without new evidence being presented before it, may change its mind as a result of reargument and come to a different conclusion, provided the order of rehearing is not made more than eighteen months after the decision of the board. We have held many times that the board has broad powers to grant a rehearing when justice requires it. Greeby v. Phila. Asbestos Co., 120 Pa. Superior Ct. 9, 181 A. 452 (1935); Conti v. Butler Consolidated Coal Co., 169 Pa. Superior Ct. 276, 82 A.2d 528 (1951); Gonzales v. O'Donnell's Broad Street Bar, Inc., 204 Pa. Superior Ct. 170, 203 A.2d 583 (1964); Thomas v. James J. Skelly, Inc., 204 Pa. Superior Ct. 166, 203 A.2d 339 (1964). The defendant's contention that the board exceeded its authority in rehearing this matter is without merit.

The board's decision after rehearing was based on the following finding:

"We have carefully reviewed claimant's brief and defendant's reply brief of which we did not ...


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