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KING KUP-SCHOENER CANDIES v. WORKMEN'S COMPENSATION APPEAL BOARD AND FLORENCE ERNST (10/29/73)

decided: October 29, 1973.

KING KUP-SCHOENER CANDIES, INC. AND PENNSYLVANIA MANUFACTURERS' ASSOCIATION INSURANCE COMPANY, INSURANCE CARRIER, APPELLANTS,
v.
WORKMEN'S COMPENSATION APPEAL BOARD AND FLORENCE ERNST, APPELLEES



Appeal from the Order of the Workmen's Compensation Appeal Board in case of Florence Ernst v. King Kup-Schoener Candies, Inc. and Pennsylvania Manufacturers' Association Insurance Company, Insurance Carrier, No. A-65498.

COUNSEL

Richard A. Bausher, with him Stevens & Lee, for appellant.

Clifford B. LePage, Jr., with him Austin, Speicher, Boland, Connor & Giorgi, for appellee.

Judges Kramer, Wilkinson, Jr. and Rogers, sitting as a panel of three. Opinion by Judge Wilkinson.

Author: Wilkinson

[ 10 Pa. Commw. Page 352]

Two issues are presented for decision in this appeal from the order of the Workmen's Compensation Appeal Board. The first relates only to the facts of the instant case -- does the record support the findings? The second is of wider import -- can a successor-referee who has not heard the testimony or seen the witnesses make findings based on the record prepared by his predecessor-referee?

Claimant-appellee, identified by employer-appellant as a candy packer, suffered a compensable injury to her left hand and wrist on July 15, 1969, while dumping candy from a tray. Under an appropriate agreement, she received compensation until November 3, 1969. A final receipt was executed on November 5, 1969. The disability recurred on October 28, 1970, and a new agreement was executed. On April 14, 1971, appellant-insurance carrier ceased payments. On June 29, 1971, a petition to terminate compensation was filed, alleging disability ceased on April 14, 1971. An answer was filed on July 21, 1971, denying the allegations of the petition and alleging claimant-appellee was unable to return to work until she was in a position to do the "heavy lifting" her work required.

A hearing was held before Referee Tworzydlo on September 10, 1971. Appellant-insurance carrier presented two witnesses: a doctor who testified that claimant-appellee had recovered and should be able to pick up 15 pounds, but he could not say whether she would suffer pain doing so; the plant manager of employer-appellant who testified as to the three jobs that might be available for claimant-appellee and the duties of each.

Claimant-appellee presented her doctor who testified she was 10% disabled and probably should not pick up

[ 10 Pa. Commw. Page 353]

    over 10 pounds. Claimant-appellee testified that she could do all the work of the jobs identified except dump trays. She testified further that when she returned to work before the recurrence of the disability, she was assigned one of the jobs that were offered, but a "floor lady" made her dump trays regardless of what the duties were said to be.

Following the hearing on September 10, 1971, but before the referee's report was filed, Referee Tworzydlo left his position as referee. This case was then assigned to Referee Perna, who made the findings and entered an award to claimant-appellee based on total disability on February 24, 1972.

Insurance carrier-appellant appealed to the Workmen's Compensation Appeal Board on March 24, 1972, assigning as error the finding of fact that claimant-appellee could not perform her usual work, and the finding that she was totally disabled. The appeal from the referee's decision and order to the Board did not object to the fact that the referee's decision and order were made by the successor-referee who had not heard the witnesses. In the brief filed with the Board, in what would appear to be an effort to persuade the Board to reverse the findings, there was a reference to the fact that the referee did not see or hear the witness. This complete reference is here quoted: "Referee Perna did not see or hear the witnesses in this case, and how he could come to the conclusion he did, in the face ...


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