James W. Cullen, Irving M. Stern, Sayre, for appellant.
Joseph A. Murphy, John R. Lenahan, Lenahan, Dempsey & Murphy, Scranton, for appellee.
Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Manderino, J., concurs in the result. Roberts, J., filed a concurring and dissenting opinion.
This is an appeal by Crispino Velardi, a former employee of Page's Department Store in Sayre, Pennsylvania,
from denial of a claim under the Workmen's Compensation Act, Act of June 2, 1915, P.L. 736, § 101 et seq., as amended, 77 P.S. § 1 et seq. The claim petition was denied by the referee on the ground that Velardi had not proved an accident; the Workmen's Compensation Appeal Board, without taking any additional evidence, found to the contrary and rendered an award; the Commonwealth Court reversed the Board and upheld the referee. We granted allocatur*fn1 and, for the reasons which follow, will remand for further proceedings.
The claimant's testimony was that while arranging a display of summer merchandise at the store, he lifted a lawnmower weighing approximately fifty pounds for the purpose of placing it upon a platform six inches above the floor level; that, as he was putting the lawnmower on the platform, he stumbled and fell onto the lawnmower; and that when he attempted to straighten up, he experienced severe pain in his back.*fn2 The claimant's physician testified that upon examination of the claimant the day after this incident he made a diagnosis that the claimant was suffering from a herniated intervertebral disc; a laminectomy was later performed. The doctor gave it as his opinion that the disc injury was caused by the incident at Page's store. There was also evidence and the referee found as a fact that Velardi had injured his back when as a pedestrian he was struck by an automobile in 1957.
It is, of course, elementary that in order to establish his entitlement to workmen's compensation benefits a claimant must prove the occurrence of an accident in the course of his employment. See Act of June 2, 1915, P.L. 736, art. III, § 301(a), as amended, 77 P.S. § 431.*fn3 As stated above, the referee found that appellant had failed to prove an accidental injury. Our initial inquiry must be to determine whether the Board was legally empowered to substitute its own finding that the ...