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UNITED STATES STEEL CORPORATION v. SIMON (06/19/73)

decided: June 19, 1973.

UNITED STATES STEEL CORPORATION
v.
SIMON, ET AL.



Appeal from the Order of the Workmen's Compensation Appeal Board in case of James Simon v. United States Steel Corporation, No. A-64075.

COUNSEL

James D. Strader, for appellant.

James C. Evans, for appellee.

Judges Kramer, Mencer and Blatt, sitting as a panel of three. Opinion by Judge Kramer.

Author: Kramer

[ 9 Pa. Commw. Page 283]

This is an appeal by United States Steel Corporation (USS) from an adjudication of the Workmen's Compensation Appeal Board (Board) dated September 28, 1972, dismissing USS's appeal from the referee's award of compensation to James Simon (Simon). The Board took no additional evidence or testimony and affirmed the findings of fact and conclusions of law and order of the referee.

Simon was employed by the Cyclone Fence Division of USS for approximately 20 years. His job entailed the installation and erection of fences. Initially, it is of some import to note that Simon suffered a prior injury in July of 1956, which is peripherally involved in this case. Simon's prior injury was to his right hand, neuroma developed, and Simon wore a cast to protect the hypersensitive area. In an attempt to alleviate the pain caused by the neuroma, Simon had undergone surgery in the nature of a sympathectomy. This operation was performed in the area of the right upper back. The doctor authorized Simon to return to "light work" so as to favor his injured hand, and USS was fully aware of this fact.

On October 6, 1967, Simon was helping to set fence posts. These posts were heavy steel poles 30 feet in length and four inches in diameter. The work was being done by three men. They would place one end of the pipe in a hole and then walk the pole forward. Since Simon was the tallest of the three men, he was the last man in line. As they moved toward the hole, the men would lift the post into place. During this process, the pole had a tendency to sway. Simon alleges that while erecting one of these poles, the pole swayed and he twisted his back, resulting in severe pain. Although he continued to be in pain, Simon finished the work day. October 6th was a Friday, and Simon returned to work on Monday, October 9th. On Monday, he was helping

[ 9 Pa. Commw. Page 284]

    to erect scaffolding. While climbing with a section of scaffold, he severely twisted his back and once again injured the same. Simon went to his family physician and was eventually referred to Dr. Day, an orthopedic surgeon. Dr. Day determined that surgery was required, and he performed a lumbar laminectomy and removed discs at two areas, which had no relation to the prior injury.

Several days of hearings were held, and on February 23, 1971, the referee found for Simon. USS appealed to the Board and as aforementioned, the Board affirmed the referee's findings, conclusions and order. Hence, this appeal by USS.

Our scope of review in Workmen's Compensation cases, when the claimant has been victorious below, is limited to questions of law and a determination as to whether there is substantial evidence to support the findings and conclusions of the Board. See Nash v. Sandnes' Sons, Inc., 6 Pa. Commonwealth Ct. 403, 295 A.2d 615 (1972); Bambrick v. Asten Hill Manufacturing Company, 5 Pa. Commonwealth Ct. 664, 291 A.2d 354 (1972). It is for the fact finder and not the appellate court to determine questions of credibility and the weight to be given evidence, and the party victorious below is to be given the benefit of the most favorable inference deducible from the evidence. Sabatini v. Affiliated Food Distributors, Inc., 6 Pa. Commonwealth Ct. 470, 295 A.2d 845 (1972); Nash v. Sandnes' Sons, Inc., supra.

USS presents three questions on appeal: (1) whether the incidents of October 6 and October 9, 1967, were accidents within the meaning of the Pennsylvania Workmen's Compensation Act, Act of June 2, 1915, P.L. 736, as amended, 77 P.S. ยง 1 et seq.; (2) that Simon had failed to establish the proper causal relationship between the incident in ...


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