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CONNELLY CONTAINERS v. GAHAN (TWO APPEALS) (03/14/73)

decided: March 14, 1973.

CONNELLY CONTAINERS, INC., ET AL.
v.
GAHAN (TWO APPEALS)



Appeal from the Order of the Court of Common Pleas of Philadelphia County in case of Connelly Containers, Inc., and Pennsylvania Manufacturers' Association Insurance Co. v. Frank J. Gahan, No. 3582 June Term 1967; and Appeal No. 568 C.D. 1972 from the Order of the Workmen's Compensation Appeal Board in case of Frank J. Gahan v. Connelly Containers, Inc., No. 3441.

COUNSEL

Earl T. Britt, with him Duane, Morris & Heckscher, for appellants.

Gerald J. Haas, for appellee.

President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Opinion by Judge Rogers.

Author: Rogers

[ 8 Pa. Commw. Page 78]

The notable feature of this workmen's compensation cause is that it is, and has been for five years, in a procedural snarl of unprecedented dimensions.

The claimant, Frank J. Gahan, was employed by Connelly Containers to "[take] care of the tool room in conjunction with the boilers and the plant, the heating of the plant and the process steam of the plant and other minor duties attached to that."*fn1 The plant was shut during the last week of the year 1963 and Gahan and others were mending or installing asbestos coverings on boiler pipes. The claimant asserts that on December 31, 1963, while on a ladder attempting to pry apart two pipes, he felt pain in his right arm and back. He nevertheless continued for a time the job of inserting asbestos between and around pipes. He then with difficulty and suffering pain in his neck, shoulder and arms pulled or pushed a 16-inch lever closing fuel oil strainers. He experienced pain on New Year's Day and on January 2, 1964 visited a hospital where a doctor in his words "looked at [his] condition" and told him to come back at a later date. On January 7, 1964 he reported to his employer's personnel officer that he had strained his back in pulling a transfer lever. On the same day he visited a physician

[ 8 Pa. Commw. Page 79]

    employed by the employer's insurance carrier who testified that the claimant recalled no accident and thought his symptoms were the result of successive exposure to heat and cold at work on December 31, 1963. He was treated by the carrier's doctor for some weeks. He then went to a physician of his own choosing who referred him to a neurosurgeon who, on April 7, 1964, removed a herniation of the intervertebral disc from between the vertebra of C-5 and C-6, on the right side. This surgeon's history taken January 27, 1964 included claimant's statement that he had had difficulty opening a large valve and had "unduly" exerted himself in this effort. There is evidence that the claimant had injured his back in 1961 and had left a previous employment for this reason.

When he filed his petition in March of 1964, the claimant averred that an accident occurred while he was "performing regular duties making special repairs and alterations in boiler room." A referee found that Mr. Gahan had suffered an accidental injury without specifying whether the occasion was the prying apart of pipes or the pulling of a lever. The Workmen's Compensation Board rejected the claimant's testimony as to causation, choosing to believe the carrier's physician's testimony that the claimant had not related any incident as causing his symptoms and noting the evidence of a pre-existing condition. The Board based its rejection of the claimant's version of what precipitated his discomfort on the absence of corroboration, citing Buck v. Arndt, 153 Pa. Superior Ct. 632, 34 A.2d 823 (1943). That case holds that, whether there is or is not evidence of a pre-existing condition, the uncorroborated post hac testimony of an employee that while performing his usual work in the usual manner he felt a sharp pain or twisted himself will not support a finding of an accident even though accompanied by the opinion of a physician based upon such assumed history.

[ 8 Pa. Commw. Page 80]

It was at the point of claimant's appeal from the Board's order denying benefits that the case began to disintegrate. The claimant appealed the Board's decision to the Court of Common Pleas of Philadelphia. Before the Court acted, the claimant filed with the Board a petition for rehearing under Section 426 of The Pennsylvania Workmen's Compensation Act, Act of June 2, 1915, P.L. 736, as amended, 77 P.S. ยง 871. The Board dismissed the petition and the claimant appealed. The Court of Common Pleas then made the following order: "Appeal from decision of Workmen's Compensation Board denying petition for reconsideration is sustained; case is remanded to Workmen's Compensation Board for proceedings in accordance with this Order." (Emphasis supplied.) The Board promptly and without a rehearing entered an order reaffirming the order denying benefits. The claimant also appealed this order. At this point, the court below undertook to decide the two undisposed of appeals then before it, being, in reverse order of filing, (1) the appeal from the Board's order of reaffirmance and (2) the appeal from the Board's first order on the merits. The court reasonably interpreted the Board's order of reaffirmance as a response to the Court's remand order and concluded that that response was inappropriate because addressed to the merits and not to the subject of rehearing. It therefore sustained this appeal. As to the appeal from the Board's order on the merits, the court held that the Board had capriciously disregarded evidence in corroboration ...


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