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RICE v. A. STEIERT & SONS (03/23/73)

decided: March 23, 1973.

RICE
v.
A. STEIERT & SONS, INC., ET AL.



Appeal from the Order of the Court of Common Pleas of Montgomery County, in case of Thomas J. Rice v. A. Steiert & Son, Inc. and Pennsylvania Manufacturers' Association Insurance Company, Insurance Carrier, No. 70-6137.

COUNSEL

Lowell A. Reed, Jr., with him Rawle & Henderson, for appellants.

Gerald J. Haas, for appellee.

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

Author: Kramer

[ 8 Pa. Commw. Page 266]

This is an appeal by A. Steiert & Sons, Inc. and Pennsylvania Manufacturers' Association Insurance Company (hereinafter we shall refer to both appellants as Steiert) from an order of the Common Pleas Court of Montgomery County sustaining the exceptions of Thomas J. Rice (Rice) to an order of the Workmen's Compensation Board (Board). The Board had affirmed the referee's decision thereby dismissing Rice's appeal from the referee's denial of a petition to set aside a final receipt.

Rice was injured September 1, 1965 while working for Steiert. Rice was in the act of picking up a box of steel wire when he twisted his right leg and injured his right thigh, back and hip. On September 30, 1965, an agreement for compensation was signed designating September 7, 1965 as the date of disability. Rice returned to work on November 2, 1965, at which time he signed a final receipt. He worked through November 14, 1965, at which time disability recurred, and a supplemental agreement was signed (December 7, 1965) for additional compensation, and setting aside the first final receipt. On February 25, 1966, Rice signed a second final receipt indicating that he was able to return to work on February 28, 1966.

[ 8 Pa. Commw. Page 267]

On May 24, 1966, Rice filed a petition to set aside the second final receipt. A hearing was held on October 18, 1966 before Referee John Allessandroni. The referee issued an award in favor of Rice, and Steiert appealed to the Board. On June 8, 1967, the Board sustained Steiert's appeal, vacated the referee's findings of fact and conclusions of law, appointed an impartial physician, and remanded the case for further hearing. The Board clearly indicated that it found Steiert's argument more convincing, but wanted to give "this unfortunate Claimant every benefit under the Act. . . ."

Dr. Raymond O. Stein was appointed as an impartial physician, and a second hearing was held. The referee again found for Rice, and Steiert again appealed to the Board. The Board reviewed the record and Dr. Stein's testimony at length, and found it equivocal. The Board also noted that Dr. Stein did not view all of the hospital records and x-rays, as directed in the Board's first decision. The Board's second decision issued January 30, 1969, once again sustained Steiert's appeal, vacated the findings of fact and conclusions of the referee, and provided for the appointment of a second impartial physician.

Dr. Will Gash was appointed as the second impartial physician, and a third hearing was held on June 18, 1969. The referee found for Steiert, and refused to set aside the final receipt. This time, Rice appealed to the Board, which dismissed his appeal on April 30, 1969. Rice, then, appealed to the Common Pleas Court of Montgomery County. The lower court held that the Board's second finding of fact, that claimant had recovered from his hip injury at the time he executed the final receipt, was not supported by the record. The lower court also held that the Board had capriciously disregarded the evidence of Dr. Stein. Consequently the lower court sustained Rice's exceptions and remanded

[ 8 Pa. Commw. Page 268]

    the matter to the Board for "further hearing and ...


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