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COMMONWEALTH PENNSYLVANIA v. STRICKLAND TRANSPORTATION CORP. AND TRANSPORT INSURANCE COMPANY (06/09/77)

decided: June 9, 1977.

COMMONWEALTH OF PENNSYLVANIA, FREDERICK ELTONHEAD AND WORKMEN'S COMPENSATION APPEAL BOARD
v.
STRICKLAND TRANSPORTATION CORP. AND TRANSPORT INSURANCE COMPANY, APPELLANTS



Appeal from the Order of the Workmen's Compensation Appeal Board in case of Frederick Eltonhead v. Strickland Transportation Corporation, No. A-69948.

COUNSEL

Thomas R. Bond, with him Edward R. Paul, and LaBrum and Doak, for appellants.

Thomas F. McDevitt, with him James N. Diefenderfer, for appellees.

Judges Crumlish, Jr., Mencer and Rogers, sitting as a panel of three. Opinion by Judge Mencer.

Author: Mencer

[ 30 Pa. Commw. Page 464]

This appeal has been taken from an order of the Workmen's Compensation Appeal Board (Board) which affirmed the referee's setting aside a final receipt and awarding compensation for partial disability to Frederick Eltonhead (claimant). The appellants here, Strickland Transportation Corporation (Strickland) and its insurance carrier, have argued that the Board's decision was erroneous as a matter of law because it did not disapprove the referee's refusal to consider two pieces of evidence offered by Strickland. We disagree and affirm the Board.

While working for Strickland in 1969, the claimant was involved in two incidents in which his back was injured. The first incident, on April 14, 1969, occurred while he was lifting a trunk. After treatment, he was discharged by his doctor and allowed to return to work in late April 1969. On June 27, 1969, he

[ 30 Pa. Commw. Page 465]

    reinjured his back while unloading 110-pound steel drums from a truck. As a result of this second accident, he was paid compensation for total disability from June 28, 1969 to July 7, 1969 and subsequently signed a final receipt. When he continued to have back problems, he filed a petition to set aside the receipt under the provisions of Section 434 of The Pennsylvania Workmen's Compensation Act*fn1 (Act).

At the hearing before the referee, Strickland's attorney asked the terminal manager for Strickland whether the claimant had told him that he had tried out for the Philadelphia Eagles in May of 1969. The referee sustained an objection to the question despite Strickland's assertion that it was an admission. Later, Strickland offered into evidence what is apparently an "Extract of Criminal Record" from the Philadelphia Police Department. Upon objection, the referee refused to admit this extract.

In our examination of the questions of evidence raised in this appeal by Strickland, we must keep in mind Section 422 of the Act, 77 P.S. ยง 834:

Neither the board nor any of its members nor any referee shall be bound by the common law or statutory rules of evidence in conducting any hearing or investigation, but all findings of fact shall be based upon sufficient competent evidence to justify same.

At the same time, however, as we stated in City of Pittsburgh v. Workmen's Compensation Appeal Board, 12 Pa. Commonwealth Ct. 246, 249, 315 A.2d 901, 903 (1974), we must be aware that "'[t]he relaxing of the rules of evidence is permitted in workmen's compensation cases in the futile hope that unlearned claimants might proceed ...


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