Appeal from the Order of the Workmen's Compensation Appeal Board in case of Joseph W. Lawrence, v. Olin Corporation (Plastics Division), No. A-67241.
Richard F. Stevens, with him Butz, Hudders & Tallman, for appellant.
Floyd E. Heller, with him James N. Diefenderfer, for appellees.
Judges Wilkinson, Jr., Mencer and Rogers, sitting as a panel of three. Opinion by Judge Mencer.
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Joseph W. Lawrence (claimant), an employee of Olin Corporation, was injured while in the course of
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his employment. It was alleged that the injury was in part or entirely the result of a malfunction of a gasket which caused Toluene Diisocyanate to spill, spray, leak, and flow onto the claimant.
Claimant commenced a civil action against the manufacturer of the alleged defective gasket, and Olin Corporation notified claimant's counsel that it had subrogation rights by virtue of the provisions of Section 319 of The Pennsylvania Workmen's Compensation Act, Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 671.*fn1
The record indicates that, as a result of claimant's failure to cooperate with his counsel and to prosecute the civil action, the suit was dismissed with prejudice. Prior to the taking of any testimony before the Workmen's Compensation Referee on claimant's petition for workmen's compensation benefits, counsel for Olin Corporation moved to dismiss the claim petition because
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claimant's civil action had been dismissed as a result of his failure to prosecute that action.
The referee granted Olin Corporation's motion and dismissed claimant's petition for compensation, "with emphasis that the same is ordered not on the merits ...