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JOSEPH SWITKEN COMPANY AND LIBERTY MUTUAL INSURANCE COMPANY v. MOMPIE JACKSON (03/06/75)

decided: March 6, 1975.

JOSEPH SWITKEN COMPANY AND LIBERTY MUTUAL INSURANCE COMPANY, APPELLANTS,
v.
MOMPIE JACKSON, APPELLEE. MOMPIE JACKSON, APPELLANT, V. JOSEPH SWITKEN COMPANY AND LIBERTY MUTUAL INSURANCE COMPANY, APPELLEES



Appeals from the Orders of the Court of Common Pleas of Philadelphia County in case of Mompie Jackson v. Joseph Switken Company and Liberty Mutual Insurance Company, No. 688 June Term, 1970, and No. 286 June Term, 1970.

COUNSEL

Barbara Pennell, with her Roger B. Wood, Joseph R. Thompson and James K. Thomas, II, for employer and insurance carrier.

David C. Harrison, for Mompie Jackson.

Judges Crumlish, Jr., kramer and Wilkinson, Jr., sitting as a panel of three. President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Opinion by Judge Kramer.

Author: Kramer

[ 17 Pa. Commw. Page 556]

This opinion involves the disposition of three appeals taken from two orders of the Court of Common Pleas of Philadelphia County which affirmed an order of the Workmen's Compensation Board (Board) disallowing a workmen's compensation claim of Mompie Jackson (Jackson).

Jackson was a truck driver physically handling the delivery of wholesale meat (packaged in barrels, boxes and packages) for Joseph Switken Company (Switken) in the Philadelphia area. He had been employed by Switken for approximately 18 years (the record also indicates that perhaps Jackson had been employed for only 16 years). For many years Jackson had suffered from diabetes. Because of this ailment, on the morning of June 15, 1965, the date of the incident in question, Jackson examined, washed and oiled his feet prior to putting on clean white cotton socks in preparation for work. This procedure had been recommended by a physician for Jackson. He testified that at some time during that day, while on the business of his employer, he experienced pain in his left leg and general dizziness, but he completed his work for the day. Upon arriving at his home, he immediately went to bed and called upon his

[ 17 Pa. Commw. Page 557]

    wife for assistance. She removed his shoes and socks and observed blood on the left sock at the large toe and a piece of glass imbedded under the front bottom portion of the toe. She removed a piece of glass approximately three-quarters of an inch long.

The record is quite clear that Jackson changed from his street shoes to his steel-toed and rubber-soled work shoes upon arriving at his place of employment. He reversed the procedure at the end of the work day, and the work shoes were placed in a locker at his place of employment. Because of a lack of feeling and general numbness about his feet, caused by the diabetes, Jackson was unable to state exactly when the glass became imbedded in his toe. He stated that on one delivery of meat for his employer he observed broken glass about the place of delivery. He concluded that it was at this place of delivery that the glass pierced the shoe and his toe. Jackson immediately notified his employer of his difficulty, and later obtained medical attention, but gangrene set in, and the toe was amputated.

Jackson filed a claim for compensation and Switkin denied knowledge of a work-related accident or injury. Hearings were held, after which a referee of the Board, on June 30, 1969, issued an adjudication disallowing Jackson's claim. This disallowance was based primarily upon a conclusion that Jackson had not sustained an accident in the course of his employment. The referee also found that Jackson was totally disabled from June 15, 1965. Upon appeal to the Board, and without the receipt of additional testimony or evidence, the Board issued an adjudication in which Jackson's appeal was dismissed, but the Board changed the referee's findings of fact. The Board found that:

"On June 15, 1965, the claimant, Mompie Jackson, suffered an accident while in the course of his employment when a piece of glass ...


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