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KIMBOB CORP. v. WORKMEN'S COMPENSATION APPEAL BOARD AND EUGENE L. MARKEL (02/15/74)

decided: February 15, 1974.

KIMBOB CORP., FORMERLY KIMBOB, INC., APPELLANT,
v.
WORKMEN'S COMPENSATION APPEAL BOARD AND EUGENE L. MARKEL, APPELLEES



Appeal from the Order of the Workmen's Compensation Appeal Board in case of Eugene L. Markel v. Kimbob, Inc., No. A-65939.

COUNSEL

John Havas, with him Robert J. Woodside and Shearer, Mette, Hoerner & Woodside, for appellant.

Sheldon Rosenberg, with him James N. Diefenderfer, for appellees.

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

Author: Mencer

[ 12 Pa. Commw. Page 93]

This case is before us on an appeal by Kimbob Corp. (Kimbob) from an order of the Workmen's Compensation

[ 12 Pa. Commw. Page 94]

Appeal Board (Board) granting compensation to Eugene L. Markel.

Markel had been employed by Kimbob for about eight months as a jackhammer operator. On September 24, 1970, upon completing a job, Markel injured his back when he lifted a jackhammer weighing approximately ninety (90) pounds and threw it on a truck parked on a bank about four feet above the surface on which he was standing.

Markel was denied compensation as a result of a referee's findings of fact that his injury occurred while he was performing his regular work in the usual manner and therefore that he did not suffer an "accident" within the meaning of Section 301(c) of The Pennsylvania Workmen's Compensation Act, Act of June 2, 1915, P.L. 736, as amended, 77 P.S. ยง 411. On June 7, 1973, without taking additional evidence, the Board reversed the order of the referee and awarded compensation to Markel. In so doing, the Board set aside certain of the referee's findings of fact and substituted its own.

Specifically, the Board found as a fact that Markel's act of throwing the jackhammer required a materially greater amount of exertion and risk or exposure than that to which he was ordinarily subjected. The legal result of the substitution of this finding for the finding made by the referee was that Markel was now entitled to receive compensation under the "unusual exertion" classification of a compensable "accident." See Hinkle v. H.J. Heinz Co., 7 Pa. Commonwealth Ct. 216, 298 A.2d 632 (1972). The propriety of the Board's substitution of its finding for that of the referee is the narrow issue presented by this appeal.

Our scope of review in this type of case is limited to a determination of whether constitutional rights were violated, an error of law was committed, or any necessary ...


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