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WILDER v. JONES & LAUGHLIN STEEL CORPORATION (04/17/73)

decided: April 17, 1973.

WILDER
v.
JONES & LAUGHLIN STEEL CORPORATION



Appeal from the Order of the Court of Common Pleas of Allegheny County in case of Guy Wilder v. Jones & Laughlin Steel Corporation, No. SA 685 of 1971.

COUNSEL

James H. McConomy, with him Reed, Smith, Shaw & McClay, for appellant.

Robert K. Stitt, III, 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 506]

This is an appeal from an order of the Court of Common Pleas of Allegheny County remanding this case back to the Workmen's Compensation Board (Board). This matter was commenced on July 17, 1967, by the filing of a claim petition with the Board by Guy Wilder (Wilder), seeking workmen's compensation benefits from Jones & Laughlin Steel Corporation

[ 8 Pa. Commw. Page 507]

(J&L), his employer, arising out of an alleged accident occurring on February 15, 1967. Wilder's description of his duties on the day of the alleged accident include the cleaning of troughs or runners used in topping slag from molten metals. In his testimony, he stated: "Well, the first monkey [a technical steelworker's term] insisted he didn't need help; he told me to pack my cast and get ready for the next cast. As I stepped up to his runner, I caught myself stepping back -- he was still working -- I caught myself stepping back so that he could throw the shovel of scrap into the railroad car and I lost my footing and fell." Wilder testified that he was treated at the dispensary of the plant following the accident and that he was in pain through April 25, 1967, which was the last day he worked at the plant. Wilder was the only witness who testified before Referee Rossi. He also testified that he was treated by a Dr. Zeil (sometimes spelled Ziel in the record), but there is no testimony, deposition or other evidence presented by that doctor. By stipulation, the testimony of Dr. Sundry was submitted to the Board by way of deposition. Dr. Sundry first met and examined Wilder on October 24, 1968, some 20 months after the alleged accident. Dr. Sundry's diagnosis was that Wilder had suffered a "lumbosacral strain with musculature involvement." Dr. Sundry stated that he treated Wilder through April of 1969, at which time Wilder returned to some (not clear in the record) form of work. We believe it also important to note that while Wilder refers to witnesses who saw the alleged accident, he produced none. Wilder also testified that he had considerable treatment in the dispensary at the plant, but he produced no evidence of same. There does appear in the record two forms, on J&L stationery, which indicate that Wilder received treatment for the condition of which he complained. However, these forms are dated March 12 and March 15, 1967, and set forth

[ 8 Pa. Commw. Page 508]

March 11 and March 12 as the date of original injury. Furthermore, the forms highlight a description of an entirely different incident whereby Wilder declared that his injuries were a result from slipping "over a puddle of water, slipped leg went from under me, twisted my back."

The problem which confronts us in this case, however, is that Referee Rossi, who presided at the only evidentiary hearing in this matter, died before the adjudication was issued. As a result, the Board substituted Referee Fried, who after reviewing Wilder's testimony, the deposition of Dr. Sundry, and the other evidence, made findings of fact and concluded as a matter of law that Wilder had not met his burden of proving that he had sustained an accidental injury compensable under The Pennsylvania Workmen's Compensation Act, Act of June 2, 1915, P.L. 736, as amended, 77 P.S. ยง 1, et seq. Wilder offered no objection to Referee Fried's rendering an adjudication. Wilder filed exceptions to the Referee's adjudication, which are general in nature and do not raise any objections to Referee Fried's rendering the adjudication. The Board affirmed and thereafter Wilder took an appeal to the Common Pleas Court of Allegheny County; once again filing exceptions, general in nature. No mention is made by Wilder in the appeal to the court below concerning the rendering of an adjudication by Referee Fried.

The court below, however, in reviewing the record, concluded that the Board could only render its adjudication on the findings of fact made by a referee who saw the witnesses and heard the testimony. It was on this basis that the court below remanded the case back to the Board for a hearing de novo. The court below made this ...


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