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NAOMI FETZER v. MICHRINA (03/26/73)

decided: March 26, 1973.

NAOMI FETZER, ET AL.
v.
MICHRINA



Appeal from the Order of the Court of Common Pleas of Lehigh County in case of Naomi Fetzer v. Josephine Michrina, No. 2 April Term, 1972.

COUNSEL

Richard F. Stevens, with him Butz, Hudders & Tallman, for appellants.

W. F. Steigerwalt, for appellee.

Judges Crumlish, Jr., Wilkinson, Jr., and Blatt, sitting as a panel of three. Opinion by Judge Blatt.

Author: Blatt

[ 8 Pa. Commw. Page 274]

Naomi Fetzer (claimant) was employed by Josephine Michrina (employer) to do various jobs about the bar owned by the employer. She usually worked in the kitchen, preparing sandwiches for the customers, and her normal working hours were between 5:00 p.m. and 1:00 a.m. She had suffered a leg injury which made it difficult for her to walk, and many times after work she stayed overnight with her employer, who

[ 8 Pa. Commw. Page 275]

    lived above the bar. The claimant, herself, lived in a building located a short distance down the alley behind the employer's bar.

It was agreed that on January 31, 1970, the claimant worked in the kitchen preparing food until approximately 1:00 a.m., and she did some clean-up work until about 1:15 a.m. The employer testified that she saw the claimant in the kitchen at about 1:15 a.m. or 1:20 a.m. putting on a pair of oversized boots as if to leave. The testimony on the record, however, was that no one saw the claimant after 1:15 a.m. or 1:20 a.m. until about 1:45 a.m., when the bartender testified that he saw her coming into the bar from the back of the building with her coat on. Both the kitchen and the back door are located in that part of the building. The testimony of the bartender and the employer was that they had not looked into the kitchen between 1:15 a.m. or 1:20 a.m. and 1:45 a.m. and so neither could say whether or not the claimant had remained there during that time period. Upon her reappearance in the bar at 1:45 a.m., however, they said that she had a drink, purchased a four-pack of beer and then left by the back door. The bartender testified that he found the claimant shortly after 2:00 a.m. at the foot of a flight of stairs outside the back of the bar with one foot on the bottom step and her head and one shoulder resting against a concrete wall. It was testified that she had suffered head injuries, including a subdural hematoma of the left side of the brain which rendered her unconscious, and she has remained in that condition. Her physician's prognosis was that she would continue to remain in such coma for the rest of her life.

The claimant*fn1 filed a claim petition with the Workmen's Compensation Board (Board), a hearing was

[ 8 Pa. Commw. Page 276]

    conducted by a referee, and the referee awarded compensation. The employer then filed an appeal with the Board, but, during the pendency of that appeal, the employer also filed a petition for rehearing asserting that the referee should hear two witnesses who could establish the whereabouts of the claimant between 1:15 a.m. and 1:45 a.m. One witness was the employer herself, who had testified at the hearing before the referee, and the other was Clare Schultz (Schultz), who had not. It was alleged that they would both testify that they had seen the claimant leave the bar at 1:15 a.m. by the back door, proceed to her own home and subsequently return.

The Board, in a single order, denied the petition for a rehearing and affirmed the referee's decision. The employer appealed to the Court of Common Pleas of Lehigh County, but that court ...


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