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WORKMEN'S COMPENSATION APPEAL BOARD COMMONWEALTH PENNSYLVANIA AND DOROTHY L. MCCOY v. D.L. CLARK COMPANY (05/28/76)

decided: May 28, 1976.

WORKMEN'S COMPENSATION APPEAL BOARD OF THE COMMONWEALTH OF PENNSYLVANIA AND DOROTHY L. MCCOY
v.
D.L. CLARK COMPANY, APPELLANT



Appeal from the Order of the Workmen's Compensation Appeal Board in case of Dorothy L. McCoy v. D.L. Clark Company, No. A-70331.

COUNSEL

Robert G. Simasek, with him Stein and Winters, for appellant.

Michael B. Kaleugher, with him Rosenberg, Kirshner & Kaleugher, and James N. Diefenderfer, for appellees.

Judges Wilkinson, Jr., Mencer and Blatt, sitting as a panel of three. Opinion by Judge Blatt. Judge Kramer did not participate in the decision in this case.

Author: Blatt

[ 24 Pa. Commw. Page 658]

This is an appeal by the D.L. Clark Company (Clark) from a decision and order of the Workmen's Compensation Appeal Board (Board) affirming a referee's decision to grant total disability benefits to Dorothy L. McCoy (claimant) for injuries suffered at work on January 15, 1971.

The claimant had been employed as a production line worker by Clark, a candy manufacturer, where her duties included responsibility for supplying empty two-pound candy boxes to a candy packing machine. The empty

[ 24 Pa. Commw. Page 659]

    boxes were contained in cases weighing from thirty to thirty-five pounds each, which were located on the floor underneath a conveyor belt where the claimant worked. On Friday, January 15, 1971, she was attempting to lift one of these cases when she experienced pain in her back. She completed work that day, but her back discomfort became so severe as to prevent her from returning to work on Monday, January 18, 1971, or any time thereafter. She then filed for disability benefits pursuant to the provisions of The Pennsylvania Workmen's Compensation Act*fn1 (Act), 77 P.S. ยง 1, et seq.

Hearings were held in March and May of 1972 before a referee who received various medical records and took testimony from both the claimant and the employer indicating, inter alia, that the claimant had previously suffered a compensable back injury in a job-related accident in May of 1967. The referee concluded, however, that the claimant sustained a disabling injury in an accident on January 15, 1971 and awarded total disability benefits. On appeal, the Board remanded the case back to the referee for a determination as to whether or not the injuries sustained on January 15, 1971 were actually caused by the lifting incident on that date or by the prior incident in May of 1967.*fn2

[ 24 Pa. Commw. Page 660]

Upon remand, the referee took additional testimony from the claimant and received into evidence the depositions of the claimant's physician and of two of Clark's physicians. He then issued a second decision on May 21, 1975 concluding that the claimant's disability was directly caused by the lifting incident on January 15, 1971, and again he awarded total disability benefits. The Board affirmed on appeal and Clark has now appealed to this Court.

Our scope of review in a case such as this where the Board has taken no additional evidence is limited to a determination of whether or not constitutional rights were violated, an error of law was committed or a necessary finding of fact made by the referee was unsupported by substantial competent evidence. Forbes Pavilion Nursing Home, Inc. v. Workmen's Compensation Appeal Board, 18 Pa. Commonwealth Ct. 352, 336 A.2d 440 ...


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