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G.T.E. SYLVANIA v. WORKMEN'S COMPENSATION APPEAL BOARD AND NORMA E. FREY (10/25/74)

decided: October 25, 1974.

G.T.E. SYLVANIA, INC. AND AMERICAN MOTORISTS INSURANCE COMPANY, INSURANCE CARRIER, APPELLANTS,
v.
WORKMEN'S COMPENSATION APPEAL BOARD AND NORMA E. FREY, APPELLEES



Appeal from the Order of the Workmen's Compensation Appeal Board in case of Norma E. Frey v. G.T.E. Sylvania, Inc.

COUNSEL

Robert M. Zimmerman, with him Zimmerman, Lieberman & Derenzo, for appellants.

Charles W. Johnston, Jr., with him Ira H. Weinstock, Handler, Gerber and Weinstock and James N. Diefenderfer, for appellees.

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

Author: Mencer

[ 15 Pa. Commw. Page 379]

This is an appeal by G.T.E. Sylvania, Inc., and its insurance carrier, American Motorists Insurance Company (appellants), from the affirmance by the Workmen's Compensation Appeal Board (Board) of a referee's award of workmen's compensation benefits to Norma E. Frey (claimant).

Claimant sustained a compensable injury on March 20, 1972, but continued working until May 30, 1972. An agreement was then entered into providing for payment of compensation benefits to claimant for total disability. She returned to work on July 31, 1972 and, under date of August 2, 1972, executed a final receipt. After two and one-half weeks on the job, she again left work because of pain which she claimed was caused by her accident of March 20, 1972. She has never returned to work.

On November 1, 1972, claimant filed a claim petition with the Bureau of Workmen's Compensation.

[ 15 Pa. Commw. Page 380]

This petition was then followed by the filing of a petition to set aside the final receipt of August 2, 1972. The two petitions were consolidated for hearing by a referee who subsequently awarded compensation on the basis of his finding that claimant was totally disabled as a result of her accident. Appellants appealed to the Board, and the Board's affirmance of the referee brought about the present appeal to this Court.

Our scope of review in this type of case in which the party having the burden of proof has prevailed below*fn1 is limited to a determination of whether constitutional rights were violated, an error of law was committed or any necessary finding of fact was not supported by substantial evidence. See Panther Valley School District v. Workmen's Compensation Appeal Board, 13 Pa. Commonwealth Ct. 178, 318 A.2d 403 (1974).

Appellants show their awareness of our narrow review by arguing as their only contention on appeal that the referee's finding of a causal relationship between claimant's accident and her cervical injury is not supported by competent evidence. Although this argument is not without merit, it does not compel reversal since we conclude that this particular finding of fact was not necessary in order for the referee to decide the case as he did. As our scope of review implies, we must affirm if the necessary findings of fact are supported by substantial evidence.

The fatal flaw in appellants' argument is that the referee found (finding No. 8) that claimant "was totally disabled . . . from either or both the injury to her lumbosacral area and her cervical area." (Emphasis added.) This finding makes it irrelevant ...


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