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MRS. SMITH PIE COMPANY AND ATLANTIC COMPANIES v. COMMONWEALTH PENNSYLVANIA (03/04/81)

decided: March 4, 1981.

MRS. SMITH PIE COMPANY AND THE ATLANTIC COMPANIES, PETITIONERS
v.
COMMONWEALTH OF PENNSYLVANIA, WORKMEN'S COMPENSATION APPEAL BOARD AND MELVIN L. WISE, RESPONDENTS



Appeals from the Orders of the Workmen's Compensation Appeal Board in case of Melvin L. Wise v. Mrs. Smith Pie Company, No. A-74859.

COUNSEL

Susan McLaughlin, with her David L. Pennington, Harvey Pennington, Hertig & Renneisen, Ltd., for petitioners.

Marc S. Jacobs, with him Ronald J. Artigues, of counsel, Galfand, Berger, Senesky, Lurie and March, for respondents.

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

Author: Rogers

[ 57 Pa. Commw. Page 275]

Mrs. Smith Pie Company and its insurer, Centennial Insurance Company*fn1 (Mrs. Smith), have appealed from two orders of the Workmen's Compensation Appeal Board (Board). The appeals have been consolidated for briefing, argument and disposition. We affirm.

On February 23, 1973, Melvin L. Wise was injured in the course of his employment with Mrs. Smith when oven cleaning acid splashed in his eyes, resulting in the complete loss of vision in Wise's right eye. On March 14, 1974, Wise filed a claim petition for benefits for the permanent loss of his right eye pursuant to Section 306(c) of The Pennsylvania

[ 57 Pa. Commw. Page 276]

Workmen's Compensation Act, Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 513 (Act). A hearing was held on September 13, 1974, before Referee Clement J. Cassidy, at which Wise testified. Referee Cassidy continued the hearing until April 14, 1975, when Wise introduced the deposition of Dr. Aaron W. Mallin, a Board certified psychiatrist and neurologist. Dr. Mallin's unequivocal testimony was that there is no physiological basis for Wise's condition but that the blindness in his right eye is a product of a psychological hysterical conversion directly related to the accident on February 23, 1973. Dr. Mallin also testified that Wise's blindness is permanent. Referee Cassidy again continued the hearings until March 8, 1976.

Mrs. Smith did not offer any testimony or adduce any evidence at either the September 13, 1974, or the April 14, 1975, hearing. However, on August 14, 1975,*fn2 Wise was examined at the request of Mrs. Smith by Dr. Nathan Schlezinger. Based on this examination, Dr. Schlezinger agreed with Dr. Mallin that Wise's blindness was psychological; however, Dr. Schlezinger concluded that further tests conducted in a hospital would be necessary in order to ascertain whether or not Wise's blindness was permanent.

Mrs. Smith took no action on Dr. Schlezinger's report until the March 8, 1976, hearing, when it asked Referee Cassidy for a further continuance so that it might take and offer Dr. Schlezinger's deposition for the record and in addition petition the Board for an order that Wise be hospitalized for further testing and treatment. Referee Cassidy refused the continuance on the ground that Mrs. Smith had had sufficient time in which to depose Dr. Schlezinger and to

[ 57 Pa. Commw. Page 277]

    petition the Board. Referee Cassidy then closed the record and on February 16, 1978, issued an opinion with an order awarding benefits to Wise for the permanent loss of his right eye. The Board, without taking ...


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