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EMORY R. KISTLER v. COMMONWEALTH PENNSYLVANIA (10/23/80)

decided: October 23, 1980.

EMORY R. KISTLER, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, WORKMEN'S COMPENSATION APPEAL BOARD AND HEMPT BROTHERS, INC., RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in case of Claim of Emory R. Kistler v. Hempt Brothers, Inc., No. A-76974.

COUNSEL

Constance P. Brunt, with her Bruce D. Foreman, Melman, Gekas, Nicholas & Lieberman, for petitioner.

Paul L. Zeigler, Goldberg, Evans & Katzman, for respondents.

Judges Wilkinson, Jr., Rogers and MacPhail, sitting as a panel of three. Opinion by Judge Rogers.

Author: Rogers

[ 54 Pa. Commw. Page 335]

Emory R. Kistler has appealed from an order of the Workmen's Compensation Appeal Board (Board)

[ 54 Pa. Commw. Page 336]

    upholding a referee's denial of workmen's compensation benefits for injuries allegedly received in the course of his employment. We affirm.

Kistler filed a claim petition for workmen's compensation benefits on June 29, 1978 alleging that he had, seven months earlier, suffered a detached retina of the right eye when the truck he was driving "bucked" while discharging a load of stone causing his head to strike the roof of the cab. Kistler was not represented at the several hearings conducted by the referee. Despite the advice of a most considerate referee, Kistler was unwilling to produce medical evidence necessary to prove that the detached retina was work-related. The referee advised Kistler to produce the testimony of his treating physician during the relevant period and hearings were twice fixed and held for this purpose without result. Kistler at one point sought to introduce a letter from his treating physician despite a previous warning that such evidence would not be admitted over the objection of the employer's carrier.

During the course of the hearings Kistler testified on direct that he had suffered eye disorders for ten years, and on cross-examination, that the blow to the head which allegedly caused his injury had been an almost daily occurrence in his occupation without prior harmful effect. He also admitted that he had not realized that he was injured until he had an eye examination two days after the alleged blow to his head.

On this record the referee found that claimant had not sustained his burden by failing to introduce competent evidence of the injury and the causal relation between that injury and the job connected incident. We agree.

Of course claimant had the burden to prove, by competent evidence, all elements necessary to support an award. Nevison v. Food Fair ...


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