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decided: January 25, 1979.


Appeal from the Order of the Workmen's Compensation Appeal Board in case of Michael Smallem v. Firestone Tire & Rubber Co., No. A-72448.


John A. Fitzpatrick, with him Joseph R. Thompson, for petitioners.

Marc S. Jacobs, with him Galfand, Berger, Senesky, Lurie & March, and James N. Diefenderfer, for respondent.

Judges Blatt, DiSalle and MacPhail, sitting as a panel of three. Opinion by Judge Blatt. Judge DiSalle concurs in the result only.

Author: Blatt

[ 40 Pa. Commw. Page 143]

The Firestone Tire & Rubber Company (employer) and its insurer Liberty Mutual Insurance Company appeal here from an order of the Workmen's Compensation Appeal Board (Board) granting total disability benefits to Michael Smallen (claimant).

The claimant was employed for approximately thirteen years as a maintenance mechanic by the employer. In 1966 he sustained a fracture to his right elbow at work but no claim for compensation was submitted under The Pennsylvania Workmen's Compensation Act*fn1 (Act) at that time. Almost nine years later, in

[ 40 Pa. Commw. Page 144]

December of 1974 or January of 1975, however, the claimant reported to the nurse at the employer's dispensary complaining of atrophy of the muscle in his right hand and said that he could not straighten out his right elbow. The nurse testified that he made no mention of any recent injury but that he attributed his condition to the 1966 accident. The employer's physician later examined the claimant and advised him to see his family doctor, which he did, and on or about May 4, 1975, he was hospitalized for a surgical procedure to correct his problem with his right arm. His doctor, Dr. Jaeger, stated in his report that the condition was caused by an injury to the nerve as a direct result of the 1966 accident and that the continued use of the elbow in daily work activity had caused persistent and repetitive minimal traumata to the nerve over the years, resulting in the severe manifestation of "tardy ulnar palsy." On or about May 5, 1975, the claimant filed a sickness and accident claim with his employer wherein he stated that the accident which caused his injury had occurred in 1966.*fn2 He also filed a claim petition for workmen's compensation benefits in July 1975, alleging that he was disabled from December of 1974 to that time as a result of the continuous use of his elbow in his daily work activity, resulting in palsy of his right arm.

After a hearing, at which both the claimant and the employer testified and submitted evidence, the referee denied workmen's compensation benefits on the basis that the claimant had failed to file a timely claim petition for the 1966 injury and had "failed to prove by sufficient, competent evidence that he incurred a work-related injury in 1974 or 1975 which aggravated

[ 40 Pa. Commw. Page 145]

    or reactivated a previous physical condition." The referee held therefore that the claimant was not entitled to compensation under Section 301(c)(1) of the Act. On appeal to the Board, the claimant alleged that the referee had capriciously disregarded Dr. Jaeger's medical report which indicated that the injury was the direct result of the claimant's daily work activities. He also argued that the referee's emphasis on the lack of a recent traumatic injury was in error because his claim petition and the evidence offered concerned an injury which was due to continuous use of his elbow at work. On this basis, the Board reversed and remanded the case to the referee for findings of fact as to the occurrence of an injury due to repetitive trauma. Without taking additional evidence at the hearing then held, the referee, in his second decision on this matter, again denied compensation to the claimant, finding again that the claim was untimely, and holding that the claimant had not sustained a compensable work-related injury in December of 1974 or in January of 1975. On appeal, the Board again reversed the referee, and without hearing further testimony or accepting other evidence, deleted five findings of fact made by the referee and substituted new findings of its own. The employer now appeals from that decision to this Court.*fn3

The record here reveals that the Board specifically reversed two of the referee's findings of fact that the claimant failed to establish an occupational injury at any time during the months of December 1974 or January 1975 on the basis that they were inconsistent with the referee's finding of ...

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