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BARBER v. FLEMING-RAUGH (09/15/66)

decided: September 15, 1966.

BARBER, APPELLANT,
v.
FLEMING-RAUGH, INC.



Appeal from order of Court of Common Pleas No. 6 of Philadelphia County, June T., 1965, No. 633, in case of Willie James Barber v. Fleming-Raugh, Inc. et al.

COUNSEL

William A. Goichman, for appellant.

Frederick L. Fuges, with him MacCoy, Evans & Lewis, for appellees.

Ervin, P. J., Wright, Watkins, Montgomery, Jacobs, Hoffman, and Spaulding, JJ. Opinion by Watkins, J. Wright, J., concurs solely on the unusual pathological result doctrine.

Author: Watkins

[ 208 Pa. Super. Page 232]

This is an appeal from the remand order of the Court of Common Pleas No. 6 of Philadelphia County, in a workmen's compensation case, by the claimant-appellant, Willie James Barber. The remand order held that the findings of the Board were not supported by sufficient legally competent evidence and directed the Board to find facts in accordance with the court's opinion.

[ 208 Pa. Super. Page 233]

The appellees, Fleming-Raugh, Inc., the employer, and Maryland Casualty Company, its insurance carrier, filed a motion to quash the appeal from the remand order as being interlocutory. Ordinarily this is so. Wilk v. The Budd Company, 174 Pa. Superior Ct. 108, 100 A.2d 127 (1953). However, this Court has held that an order such as this, notwithstanding the remittitur, amounts to a judgment in favor of the appellees. Strickland v. Baugh & Sons Company, 139 Pa. Superior Ct. 273, 11 A.2d 547 (1940); Rozauski v. Glen Alden Coal Co., 165 Pa. Superior Ct. 460, 69 A.2d 192 (1949). The Court of Common Pleas does not have authority, in a workmen's compensation case, to remand a proceeding to the Board with instructions to find facts in accordance with the opinion of the court. Such an order is erroneous as a matter of law and appealable. Messikomer v. Baldwin Loco. Works, 178 Pa. Superior Ct. 537, 115 A.2d 853 (1955). The motion to quash is dismissed.

This case has had an eventful history. It began with the Referee refusing benefits. On appeal, the Board reversed but remanded to the Referee for findings and conclusions in accord with its decision and for the further purpose of determining medical and hospital expenses. The appellees appealed to the Court of Common Pleas No. 6 of Philadelphia County. After the filing of this appeal a stipulation was made as to medical and hospital costs. The Referee then made his findings and conclusions and awarded benefits. The appellees appealed to the Board which affirmed the Referee. The appellees again appealed to the Court of Common Pleas No. 6 of Philadelphia County. The remand order followed and then this appeal by the claimant.

The claimant was 37 years of age at the time of the hearing and was employed by the appellees, a building contractor, as a manual laborer, since March of 1959.

[ 208 Pa. Super. Page 234]

From that day he was continuously so employed until his accident on August 8, 1960. On that date he was lifting roofing tar that was folded into rolls. These rolls were four feet long and four feet wide. Each roll weighed between 150 to 175 lbs. While lifting such a roll, he heard his back "pop" and pain went through his left leg. He was taken from the site to Temple University Hospital. He was hospitalized and remained there until August 22, 1960, with a diagnosis of low back pain and possible herniated disc. He continued treatment without relief. He tried returning to work but in October began out-patient treatment at Philadelphia General Hospital. He was hospitalized from December 27, 1960, until January 23, 1961. A laminectomy was performed for removal of a herniated disc between L-5 and S-1. The operation was not successful. He was re-admitted to the hospital on September 12, 1961, and was a patient until October 6, 1961. He was again hospitalized from October 31, 1961, to December 7, 1961, during which time a spinal fusion was performed. ...


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