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WORKMEN'S COMPENSATION APPEAL BOARD COMMONWEALTH PENNSYLVANIA v. MARY RITA GAIDIS (06/18/76)

decided: June 18, 1976.

WORKMEN'S COMPENSATION APPEAL BOARD OF THE COMMONWEALTH OF PENNSYLVANIA, ALLEGHENY GENERAL HOSPITAL AND EMPLOYERS MUTUAL INSURANCE COMPANY OF WAUSAU
v.
MARY RITA GAIDIS, APPELLANT



Appeal from the Order of the Workmen's Compensation Appeal Board in case of Mary Rita Gaidis v. Allegheny General Hospital, No. A-69857.

COUNSEL

Edward B. Friedman, with him Arnold M. Friedman, and Friedman & Friedman, for appellant.

Carl B. Fried, with him James N. Diefenderfer, for appellees.

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

Author: Wilkinson

[ 25 Pa. Commw. Page 234]

Appellant-claimant suffered a compensable injury on January 10, 1972, when she struck her head on what she described as the sharp edge of a cabinet door. She was not rendered unconscious and did not cut her head, but a lump was raised. She reported the injury, had x-rays, and went home. She had a headache and took some pills. She was off work approximately three weeks until February 1, 1972. She testified she returned on February 1 to see if she could return to work. She received a slip from the examining physician to return to work and was told by the head of her department that she would be terminated if she missed any more time. She worked until Wednesday of the next week and then took off Thursday and Friday because of pain. She was then informed by her supervisor that she was being terminated for absenteeism. She had not worked from that time until the time of her first hearing on October 19, 1972.

[ 25 Pa. Commw. Page 235]

Although the matter of her dismissal is not at issue and does not affect the disposition of this case other than as the disability before the accident was the same as after the accident, appellant-claimant has excepted to the finding that she was dismissed for absenteeism prior to January 10, 1972, the date of her injury. The head of her department testified that appellant-claimant was in her probationary period and was terminated for excessive absenteeism. Although the record is not entirely clear, taken in the light most favorable to appellant-claimant, she seems to have been absent 26 days during the probationary period. 25 of these days' absence were due to illness, 12 of which occurred before the accident. The supervisor testified that those 12 days prior to the accident were excessive. This is the support in the testimony for the finding.

Appellant-claimant filed her claim petition on May 12, 1972. Hearings were held October 19, 1972, February 14, 1973, and November 18, 1974, and depositions were taken. Appellee-employer requested an opportunity to file a brief and did so on December 31, 1974, with a copy to appellant-claimant which seems to have arrived on January 2, 1975. On January 27, 1975, the referee filed his decision without waiting further for appellant-claimant's reply brief. By letter dated December 13, 1974, appellant-claimant had requested a reasonable amount of time to file a reply brief. Especially since appellant-claimant was the moving party and should have been prepared to file a brief first, we cannot say that 25 days was not a reasonable time within which to file a reply brief. When reply briefs are permitted by this Court, the time is frequently, if not usually, restricted to not more than 10 days.

The referee found that appellant-claimant's disability caused by the accident terminated on February

[ 25 Pa. Commw. Page 2361]

, 1972, the date she received her medical slip to return to work. On appeal, the Workmen's Compensation Appeal Board affirmed the referee. This appeal followed. We must affirm.

The remaining question raised and the only one of substance is whether the referee capriciously disregarded competent medical evidence in deciding that any disability following February 1, 1972, was not caused by nor related to her accident of January 10, 1972. After a careful review of the medical testimony, we must affirm the decision of the Workmen's Compensation Appeal Board that this case contains a direct conflict in the testimony with competent medical testimony going both ways. Under ...


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