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MARY MALOCHESKI v. CONSOLIDATED CIGAR CORPORATION AND WORKMEN'S COMPENSATION APPEAL BOARD (03/06/74)

decided: March 6, 1974.

MARY MALOCHESKI, APPELLANT,
v.
CONSOLIDATED CIGAR CORPORATION AND WORKMEN'S COMPENSATION APPEAL BOARD, APPELLEES



Appeal from the Order of the Workmen's Compensation Appeal Board in case of Mary Malocheski v. Consolidated Cigar Corporation and Employers Mutual Liability Insurance Company, No. A-66735.

COUNSEL

Joseph J. Musto, with him Bedford, Waller, Griffity, Darling & Mitchell, for appellant.

James K. Martin, for appellee.

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

Author: Blatt

[ 12 Pa. Commw. Page 431]

Mary Malocheski (claimant) sought benefits under The Pennsylvania Workmen's Compensation Act*fn1 for a disability allegedly arising from an injury to her left eye which occurred while she was employed by the Consolidated Cigar Corporation (Consolidated). Following a hearing, the referee found that the claimant had suffered a disability as a result of an accident occurring in the course of her employment, and he awarded her compensation for total disability through September 14, 1971. On appeal, the Workmen's Compensation Appeal Board (Board), without taking any additional evidence, determined that the testimony of

[ 12 Pa. Commw. Page 432]

    the claimant's medical witnesses was equivocal and vacillating, and it reversed the order of the referee, making a new finding of fact to the effect that the claimant "did not suffer an accidental injury in the course of her employment. . . ."

On appeals to this Court in workmen's compensation cases, our scope of review is limited to a determination of whether or not constitutional rights were violated, an error of law was committed, or any necessary finding of fact was unsupported by substantial evidence. Jessop Steel Company v. Workmen's Compensation Appeal Board and Okey Miller, 10 Pa. Commonwealth Ct. 186, 309 A.2d 86 (1973). And where, as here, the Board has taken no additional evidence, we must rely on the facts as found by the referee, if they are supported by sufficient competent evidence. In such cases it is the province of the referee, not the Board, to consider the credibility of the witnesses before it. Universal Cyclops Steel Corporation v. Krawczynski, 9 Pa. Commonwealth Ct. 176, 305 A.2d 757 (1973).

The sequence of events herein, as testified to by the claimant and in large part uncontradicted, began in April of 1967 when the claimant, a wrapper layer, was allegedly using an air hose to clean the machine on which she worked. In the course of this activity some dirt blew up and some of it hit her in the eye, causing a sharp pain. She went to see the company nurse but, being unable to find her, then went home. The next day, because her eye still bothered her, she went to the nurse who put some drops in her eyes. When this did not help matters she went to the company doctor, and eventually to her own doctor, who referred her to an opthamologist. This opthamologist also treated her with eye drops, but she was not satisfied with the results and sought out another opthamologist. He treated her conservatively at first, but when her eye problems

[ 12 Pa. Commw. Page 433]

    did not seem to improve, he sent her to a specialist who eventually performed two corneal transplants on her left eye (the first transplant was rejected).

The burden herein was on the claimant to establish by competent evidence that she has suffered a disability and that such disability was accidental and not from natural causes or from the normal progress of any existing condition. Lingle v. Lingle Coal Company, 203 Pa. Superior Ct. 464, 201 A.2d 279 (1964). "[A]n accident may not be inferred merely because an injury has been suffered, nor can an injury be inferred simply because an accident has happened to an employee. In order to sustain an award, the record must disclose competent and substantial evidence, either direct or circumstantial, of the happening to an employee of something undesigned, unexpected or fortuitous, outside of ...


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