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L & A PRODUCTS AND LIBERTY MUTUAL INSURANCE COMPANY v. WORKMEN'S COMPENSATION APPEAL BOARD AND FRANCES M. MCKEOWN (02/28/75)

decided: February 28, 1975.

L & A PRODUCTS AND LIBERTY MUTUAL INSURANCE COMPANY, INSURANCE CARRIER, APPELLANTS,
v.
WORKMEN'S COMPENSATION APPEAL BOARD AND FRANCES M. MCKEOWN, APPELLEES



Appeal from the Order of the Workmen's Compensation Appeal Board in case of Frances M. McKeown v. L & A Products, No. A-63150.

COUNSEL

Stephen J. Schofield, with him Joseph R. Thompson, for appellants.

Albert Ring, with him D'Agui & Del Collo, and James N. Diefenderfer, for appellees.

President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Opinion by Judge Mencer.

Author: Mencer

[ 17 Pa. Commw. Page 468]

This is an appeal by L & A Products and its insurance carrier, Liberty Mutual Insurance Company, (appellants) from an order of the Workmen's Compensation Appeal Board (Board) which affirmed a prior order of the Board reversing a referee and awarding compensation to Frances M. McKeown (claimant).

This case began nearly eight years ago when, on June 26, 1967, claimant injured her back while in the course of her employment with L & A Products. On September 3, 1968, claimant filed a claim petition with the Bureau of Workmen's Compensation. Hearings on claimant's petition were then held before a referee who subsequently issued an order dismissing the petition, based on his findings of fact and conclusion of law that claimant had not suffered an "accident" within the meaning of The Pennsylvania Workmen's Compensation Act (Act).*fn1

Claimant appealed to the Board, and the Board, in an order dated November 3, 1971, affirmed the referee.

[ 17 Pa. Commw. Page 469]

However, this order of the Board was not filed until January 28, 1972, well after the term of office of its then members had been terminated. The effect of this action was previously before this Court in L & A Products v. McKeown, 8 Pa. Commonwealth Ct. 655, 304 A.2d 702 (1973), wherein we remanded the case to the present Board to conduct a hearing and make findings and conclusions concerning the effectiveness of the former Board's order. The Board followed our remand order and, in an opinion dated May 16, 1974, concluded that the order of the former Board had no authority since it was filed subsequent to the termination of the terms of office of its members. Neither party takes issue with this action by the Board, and it is, therefore, not an issue in this appeal.

The sole issue before us in this appeal is the propriety of the action of the present Board in an opinion dated July 31, 1972,*fn2 reversing the referee's findings of fact as to the manner in which claimant's injury occurred and substituting its own findings in reaching a conclusion that claimant was entitled to compensation.

Once again, we are faced with an interpretation and application of our decision in Universal Cyclops Steel Corporation v. Krawczynski, 9 Pa. Commonwealth Ct. 176, 305 A.2d 757 (1973). In Cyclops we stated that the 1972 amendments to the Act make the referee, ...


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