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CALCITE QUARRY CORPORATION AND PENNSYLVANIA MANUFACTURERS' ASSOCIATION INSURANCE CO. v. WORKMEN'S COMPENSATION APPEAL BOARD AND JOHN Z. FRY (07/18/74)

decided: July 18, 1974.

CALCITE QUARRY CORPORATION AND PENNSYLVANIA MANUFACTURERS' ASSOCIATION INSURANCE CO., INSURANCE CARRIER, APPELLANTS,
v.
WORKMEN'S COMPENSATION APPEAL BOARD AND JOHN Z. FRY, APPELLEES



Appeal from the Order of the Workmen's Compensation Appeal Board in case of John Z. Fry v. Calcite Quarry Corporation, No. A-66619.

COUNSEL

Thomas A. Ehrgood, with him Ehrgood & Ehrgood, for appellants.

Allen H. Krause, with him James N. Diefenderfer, for appellees.

Judges Wilkinson, Jr., Mencer and Blatt, sitting as a panel of three. President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Opinion by Judge Wilkinson. Dissenting Opinion by Judge Blatt. Judges Crumlish and Kramer join in this dissent.

Author: Wilkinson

[ 14 Pa. Commw. Page 348]

This is an appeal by the employer and its insurance carrier from an award by the referee, sustained by the

[ 14 Pa. Commw. Page 349]

Workmen's Compensation Appeal Board. The basis for the appeal is twofold: (1) that there is no competent evidence on which the referee or the Board could find that an accident occurred; and (2) assuming an accident, that there was no competent evidence on which to base a finding that the accident was the cause of the total disability. We must agree with appellants and reverse the Board.

The claimant-appellee suffered an injury to his back as a result of a compensable accident on August 9, 1969. Compensation was paid until March 16, 1970. In response to a question from the referee, claimant-appellee's counsel agreed that other than showing a pre-existing back injury, that accident had no relationship to this claim.

Claimant-appellee returned to his previous work on March 16, 1970, but with the admonition from his orthopedic surgeon that he limit himself to light work, so as to "give him a chance to progressively increase his activities." He progressed and was "tentatively discharged" by his orthopedic surgeon, who testified that he did not hear from claimant-appellee for six months prior to January 15, 1971. Claimant-appellee worked during the period March 16, 1970, to January 15, 1971, as a truck driver, progressively driving larger trucks and returning to full duty. On January 15, 1971, without objection from him, he was assigned the routine task of unloading 100 pound bags of salt from a trailer. This was the first time he had lifted 100 pound bags since his injury. He felt a pain in his back after lifting two bags and immediately stopped. He went to the company doctor who referred him to the orthopedic surgeon. He was under the orthopedic surgeon's care from January 16, 1971, until he was about ready to return to work when he suffered a heart attack on July 14, 1971. As a result of the heart attack, he continues to

[ 14 Pa. Commw. Page 350]

    be totally disabled. The referee made the ...


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