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JOHN Z. FRY v. CALCITE QUARRY CORPORATION AND PENNSYLVANIA MANUFACTURERS' ASSOCIATION INSURANCE COMPANY (03/18/75)

decided: March 18, 1975.

JOHN Z. FRY, APPELLANT,
v.
CALCITE QUARRY CORPORATION AND PENNSYLVANIA MANUFACTURERS' ASSOCIATION INSURANCE COMPANY, INSURANCE CARRIER



COUNSEL

Allen H. Krause, Lebanon, for appellant.

Thomas A. Ehrgood, Ehrgood & Ehrgood, Lebanon, for appellees.

Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Roberts, J., filed a concurring opinion. Nix, J., concurs in the result. Pomeroy, J., filed a dissenting opinion.

Author: O'brien

[ 460 Pa. Page 612]

OPINION OF THE COURT

This is an appeal from a final order of the Commonwealth Court, which reversed a Workmen's Compensation Appeal Board (board) award to appellant, John Z. Fry. We granted allocatur and now reverse the Commonwealth Court.

The facts surrounding this appeal are as follows: On August 9, 1969, appellant suffered a compensable back injury while employed as a truck driver for appellee Calcite Quarry Corporation. Orthopedic surgery was performed by Dr. Thomas Forker, resulting in the removal of four herniated discs. Appellant then returned to work as a truck driver on March 16, 1970, under instructions from Dr. Forker not to lift anything weighing more than twenty-five to thirty-five pounds, and he was also required to wear a back brace. Appellee-employer was aware of these restrictions, which were still in effect at the time of the injury involved in this appeal.

On January 15, 1971, appellant sustained further back injuries while unloading one-hundred-pound bags of salt from the tailgate of one of appellee's trucks. As a result of these injuries, on April 23, 1971, a lumbosacral spine fusion was performed by Dr. Forker on the same area of the back previously injured. Appellant was discharged from the hospital on May 21, 1971. On July 14, 1971, appellant suffered a heart attack which Dr. Forker related to appellant's back injury.

On March 29, 1971, appellant filed a claim with the Bureau of Workmen's Compensation, Pennsylvania Department

[ 460 Pa. Page 613]

    of Labor and Industry. A hearing before a referee was scheduled for July 21, 1971, but had to be postponed because of appellant's heart attack. A hearing was held on March 29, 1972, before Referee Perna, and on November 16, 1972, an award in favor of appellant was handed down. On December 26, 1972, appellee filed an appeal to the board, and on September 28, 1973, the board affirmed the award and dismissed appellee's appeal. On October 17, 1973, appellee filed an appeal to the Commonwealth Court from the order of the board. On July 18, 1974, the Commonwealth Court, in a four-three decision, reversed the award of the referee and board. We granted allocatur to clarify "the unusual strain doctrine" in workmen's compensation cases and the sufficiency of the evidence in the instant case concerning the cause of appellant's heart attack.

Appellant first argues that the Commonwealth Court erred in not sustaining the findings of the referee and the board that on January 15, 1971, an "accident" occurred within the ambit of the "unusual strain doctrine" which would allow recovery under the Workmen's Compensation Act.

Both parties agree that on January 15, 1971, appellant incurred a back injury while unloading one-hundred-pound bags of salt from the tailgate of one of appellee's trucks. The controversy is centered around whether this injury constitutes an "accident" within the "unusual strain doctrine" and, therefore, is a compensable injury under the Workmen's Compensation Act. An "accident" within the "unusual strain doctrine" occurs when a claimant suffers an injury resulting from overexertion or an unusual strain from an activity which is not within his normal work ...


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