Appeal from the Order of the Workmen's Compensation Appeal Board in case of Albert Nello v. International Paper Company, No. A-72563.
Thomas F. McDevitt, for petitioner.
R. Stuart Jenkins, for respondent, Albert Nello.
Judges Mencer, Rogers and Blatt, sitting as a panel of three. Opinion by Judge Rogers.
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International Paper Company (International), a self-insurer, has appealed from an order of the Workmen's Compensation Appeal Board (Board) affirming a referee's decision which awarded workmen's compensation benefits to Albert Nello. We affirm.
Mr. Nello had been employed by International since March, 1960, as a press helper, a position which involved the lifting and feeding of various sizes of corrugated cardboard into processing machines. Some time in July, 1971, Mr. Nello injured his back while performing his normal duties. He continued to work until August 4, 1971, at which time back pain rendered him unable to continue. On August 5, 1971, Mr. Nello began receiving treatment for his back from his family physician. Mr. Nello also applied for and received non-accident related sick benefits from International's health and sickness insurance carrier, Metropolitan Life Insurance Company (Metropolitan). Mr. Nello
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was subsequently hospitalized four times over a two-year period for back pains and related problems.
On December 21, 1972, Mr. Nello filed a claim for workmen's compensation benefits, alleging total disability due to a work related injury in July, 1971. International filed a general denial to Mr. Nello's application. Several hearings were held before a referee in 1973 through 1975. The referee, in an order issued December 21, 1976, found that Mr. Nello suffered an injury while performing his normal work on a day in July, 1971, "the exact date being unknown by the claimant, but which the Referee finds to be July 26, 1971." The referee concluded that this injury was compensable under the unusual pathological result doctrine and awarded benefits to Mr. Nello.*fn1 The referee's order also subrogated Mr. Nello's benefits to be received from International to a claim of Metropolitan for approximately $13,000.00 as reimbursement for benefits previously paid by Metropolitan to Mr. Nello under International's health and sickness insurance coverage. The referee further directed that twenty percent of Metropolitan's claim be paid to Mr. Nello's counsel as attorney fees. The Board, without taking any additional evidence, affirmed the referee's order.
International first contends that there is not substantial evidence in the record to support the referee's finding that Mr. Nello suffered an injury at work on July 26, 1971. It is true, as the referee recognized, that Mr. Nello was not certain of the date on which his injury occurred. Mr. Nello testified that he thought that he injured his back at work in about the second week of July, but that he was not certain of the date. This testimony would place the injury between July 7 and
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July 14. Therefore, International argues, the referee erred in finding that a compensable injury occurred on July 26, 1971. However, Mr. Nello also testified that at the time of his injury, he was working on the second shift at a Flexo machine and that he reported his injury to his foreman, Robert Leggett.*fn2 Mr. Nello's timecards for July and August, 1971, which are part of the record, show that only on July 26, 1971, did Mr. Nello work the second shift at a Flexo machine under Mr. Leggett. ...