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ROSE v. HORN & HARDART BAKING CO. (03/20/69)

decided: March 20, 1969.

ROSE, APPELLANT,
v.
HORN & HARDART BAKING CO.



Appeal from order of Court of Common Pleas No. 5 of Philadelphia County, March T., 1964, No. 585, in case of Connie Rose v. Horn and Hardart Baking Co. et al.

COUNSEL

Samuel A. Kagle, with him Oscar Brown and James J. Thompson, for appellant.

David L. Pennington, for appellees.

Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, Spaulding, and Hannum, JJ. Opinion by Spaulding, J. Dissenting Opinion by Wright, P. J. Watkins, J., joins in this dissenting opinion.

Author: Spaulding

[ 214 Pa. Super. Page 57]

This is an appeal by Connie Rose, appellant, from an order of the Court of Common Pleas of Philadelphia

[ 214 Pa. Super. Page 58]

County remanding a claim to the Workmen's Compensation Board for a determination of the causal relationship between appellant's herniated disc and an accident in which she was involved.

On April 5, 1959, appellant slipped and fell while employed as a waitress by appellee Horn & Hardart Baking Co. In January 1960 these parties entered into an open compensation agreement for total disability which stated that while working appellant "slipped & fell to the floor sustaining a herniation intervertebral disc, & abrasion of left wrist & contusion & hematoma of left knee." On June 22, 1960, appellee filed a petition for review of the agreement under the first paragraph of § 413 of the Workmen's Compensation Act, 77 P.S. § 771 and a petition to terminate compensation under the second paragraph of § 413, 77 P.S. § 772. The petition to review alleged that the agreement was incorrect in stating that there was a causal relationship between the accident and the herniated disc. The petition to terminate alleged that appellant's total disability terminated by reason of her refusal to submit to an operation which would correct the condition.

The petition for review of the agreement was never assigned by the board to a referee. However, at the referee's hearings on the petition to terminate compensation, counsel for both parties acknowledged that the issues raised by both petitions were before the referee and the major area of controversy at the hearings was whether the compensation agreement correctly stated that there was a causal connection between the fall and appellant's herniated disc. The referee found for appellant and made a specific finding on causation "[t]hat the accident aggravated a pre-existing condition of a degenerated disc resulting in a herniation of an intervertebral disc at the lumbo sacral innerspace causing nerve root pressure in the lower lumbar spine."

[ 214 Pa. Super. Page 59]

The Workmen's Compensation Board affirmed the referee's award of compensation on appeal. Although the board stated that it adopted the referee's findings of fact, the opinion of the board indicates that it did not pass upon the question of the correctness of the agreement. The board stated, "We have carefully reviewed the entire record and although we might question whether the claimant's herniated disc resulted from an accident on April 23, 1959, we will not terminate her compensation for the reason that she refused an operation to relieve her disability. It may well be that claimant's accident did not result in a herniated disc, but that question is not before us for determination." (Emphasis added.)

On appeal, the court below held that the issue of causality was properly before the board for determination and remanded the case for the board to make findings on this question. The court also upheld the board's determination that appellant's refusal to undergo a back operation was ...


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