Appeals from the Orders of the Workmen's Compensation Appeal Board in case of John Makarewich v. Remmey Division, A.P. Green Refractories, Co., Nos. A-71359 and A-73274.
Earl T. Britt, with him Mary H. Cosby, and Duane, Morris & Heckscher, for Remmey Div., A.P. Green Refractories Co. and Pa. Manufacturers' Association Insurance Company.
Paul Auerbach, for John Makarewich.
Judges Wilkinson, Jr., Blatt and DiSalle, sitting as a panel of three. Opinion by Judge Blatt.
The Remmey Division of A.P. Green Refractories Company (employer) and John Makarewich (claimant) have cross-appealed from an order of the Workmen's Compensation Appeal Board (Board), which affirmed a referee's decision awarding compensation for total disability but denied attorney's fees and costs.
The claimant was employed as a press operator, but when no press work was available, he was routinely assigned to loading railroad cars with bricks and tiles. Between June 28 and 30, 1971, the claimant was loading railroad cars with heavy tiles, lifting them over his head without assistance. At some point during this operation, he felt a "snapping sensation" in his left shoulder. Subsequently, he was admitted to a hospital for the treatment of an apparently unrelated hernia and the removal of fluid that had built up in his left shoulder and arm. When he filed a claim for compensation under The Pennsylvania Workmen's Compensation Act (Act),*fn1 it was premised on the theory of "unusual strain"*fn2 because the injury here had occurred prior to the 1972 amendments to the Act. A hearing was held, at which three physicians testified, two for the employer and one for the claimant. After the hearing was closed, however, the presiding referee was rendered unavailable. Another referee was therefore appointed,
who, after reviewing the record, found that the task in which the claimant was engaged at the time of the injury did not involve any unusual stress, and also found no causal connection between the claimant's employment and his present disability which was described as "a conversion hysteria and an old destructive lesion to the left shoulder." The Board disagreed on appeal, ruling that the referee had capriciously disregarded the claimant's evidence as to the nature of his task and as to the causal connection between it and his disability. The case was therefore remanded to the second referee, who, after re-examining the record, indicated in his second decision that the claimant was subjected to an unusual stress and found:
As of July 1, 1971 the Claimant was unable to perform the duties of a press operator and laborer and such disability continued up to the present time and for indefinite time into the future. Further, that the incident described [above] either precipitated or aggravated the disabling pathology, namely the destructive lesion in the left shoulder area, which if pre-existing, had certainly not hitherto been disabling.
The referee thus made an award based on the existence of total disability and interest on accrued compensation was fixed at six percent per annum. He also found, however, that the employer had established a reasonable basis for the contest. The Board affirmed and both parties appealed.
The employer argues that the Board erred when it concluded that the referee, in his first opinion, had capriciously disregarded the evidence, that there was no finding in his second opinion upon which an award of total disability could be based, and ...