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JOSEPH HORNE COMPANY AND LIBERTY MUTUAL INSURANCE COMPANY v. WORKMEN'S COMPENSATION APPEAL BOARD AND SOPHRONIA GAMBLE (10/18/74)

decided: October 18, 1974.

JOSEPH HORNE COMPANY AND LIBERTY MUTUAL INSURANCE COMPANY, APPELLANTS,
v.
WORKMEN'S COMPENSATION APPEAL BOARD AND SOPHRONIA GAMBLE, APPELLEES



Appeal from the Order of the Workmen's Compensation Appeal Board in case of Sophronia Gamble v. Joseph Horne Company, No. A-67418.

COUNSEL

Thomas J. Ferris, for appellants.

John F. Will, Jr., with him Will & Kiesling and James N. Diefenderfer, for appellees.

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

Author: Blatt

[ 15 Pa. Commw. Page 421]

Sophronia Gamble (claimant) was employed by Joseph Horne Company (employer) as a cashier and wrapper at its Monroeville store. On October 14, 1971, she filed a claim petition with the Workmen's Compensation Appeal Board (Board), alleging that on June 1, 1971, she had suffered an accident within the scope of her employment while attempting to lift a large mirror onto a wrapping table. She alleged that the weight of the mirror had caused her to twist and lose her balance and so to incur a severe back injury. At a hearing before the referee, the claimant testified that she had never lifted such a large mirror before, that it was not normally her duty to lift large objects, and that she had never had any prior back problems. She said that the injury had caused her some pain, for the treatment of which she had started to see a physician on June 17, 1971. Finally, on June 25, 1971, she quit her job when the pain became so great that she was unable to work any longer. At the hearing the claimant introduced the testimony of Dr. Samuel Sherman who had treated her. He stated that his examination indicated that she had suffered a chronic low back sprain. It was his opinion that the sprain was caused by the alleged accident.

The employer's witnesses included Kathie Sickels, the personnel manager at the Monroeville store, and John Sosak, a claims adjuster for the employer's insurance company. Miss Sickels testified that she spoke with the claimant in July of 1971 and that the claimant at that time stated that she had aggravated a previous back injury in lifting the mirror. Mr. Sosak testified that he had interviewed the claimant over the telephone in August of 1971 and that she told him that she had felt pain in her back prior to the accident. She was also said to have indicated in that conversation that she had done heavy lifting at work prior to the incident

[ 15 Pa. Commw. Page 422]

    in question and that she had not slipped, twisted or fallen in lifting the mirror.

After the hearing, the referee disallowed the claim and made the following so-called "Findings of Fact":

"First: On November 1, 1971 Sophronia Gamble, claimant, filed Claim Petition No. 209-05-2687 alleging that on June 1, 1971 she suffered an accident while in the employ of Joseph Horne Company, defendant, when, while lifting a large heavy mirror she twisted in an unusual manner causing immediate back pain, resulting in a severe back condition, to which the defendant filed a general denial, and under which Petition we now proceed.

"Second: The claimant has failed to establish by sufficient competent evidence that on June 1, 1971, or any other date, she sustained an accident within the ...


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