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MCGRAW-EDISON/POWER SYSTEMS DIVISION v. COMMONWEALTH PENNSYLVANIA (11/02/81)

decided: November 2, 1981.

MCGRAW-EDISON/POWER SYSTEMS DIVISION, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, WORKMEN'S COMPENSATION APPEAL BOARD AND JOSEPH RENDZIAK, RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in the case of Joseph Rendziak v. McGraw-Edison/Power Systems Division, No. A-77176.

COUNSEL

David M. McCloskey, Will & Keisling, for petitioner.

Leonard P. Kane, Jr., Fried, Kane, Walters & Zuschlag, for respondent, Joseph Rendziak.

Judges Mencer, Rogers and Palladino, sitting as a panel of three. President Judge Crumlish and Judges Mencer, Rogers, Blatt, Craig, MacPhail and Palladino. Opinion by Judge Rogers. Dissenting Opinion by Judge Mencer. Judge MacPhail and Palladino join in this dissent.

Author: Rogers

[ 62 Pa. Commw. Page 303]

Joseph Rendziak is an employee of McGraw-Edison/Power Systems Division. On April 1, 1977 he was doing work with a steel coil which he later testified required a lot of effort. Shortly after finishing his shift on that day, while taking a shower at home, Rendziak noticed a bulge in his left side. He saw Dr. Schmieler, a physician engaged by his employer, and later Dr. Krosnoff to whom he was referred by Dr. Schmieler. Both doctors diagnosed the bulge as an inguinal hernia. Dr. Krosnoff performed a herniorrhaphy and Rendziak returned to work on July 19, 1977 with no further disability or loss of earnings. Rendziak had no history of hernia before the occurrence just described.

Rendziak filed a Claim Petition under The Pennsylvania Workmen's Compensation Act, Act of June

[ 62 Pa. Commw. Page 3042]

, 1915, P.L. 736, as amended, 77 P.S. ยง 1 et seq., which the employer answered that Rendziak's hernia was not work related. The two doctors' reports were admitted into the record of the referee's hearing. Dr. Schmieler wrote that "no history [was] reported to me . . . of any unusual strain, slip, etc." and that "there was no history of an accident that would be compatible with causing a hernia", and stated his belief that the hernia was not related to any injury that occurred at work.

Dr. Krosnoff on the other hand wrote as follows:

In reviewing my records (see enclosed copy of history obtained from the patient) it would appear that a cause and effect relationship for the development of his hernia could be established. The patient stated to me that he had not noted the mass in his left inguinal area until after lifting all day Friday (presumable date April 1, 1977) and then reported same on Monday, April 4, 1977. During this time he was also being treated for an acute exacerbation of a chronic low back problem.

If no documentation of the hernia was ever made except as he prior states, then in my judgment I give the patient the benefit of the doubt as he so states, which would seemingly make this a work related incident.

The referee denied benefits making the two following pertinent findings:

13. The claimant by his own admission denies the occurrence of any injury on April 1, 1977.

14. The claimant has failed to meet the burden of proving the occurrence of a work related injury on April 1, 1977 and, therefore, his prayer for compensation must be denied.

*

[ 62 Pa. Commw. Page 305]

On appeal the Workmen's Compensation Appeal Board reasonably concluded, based on the referee's findings 13 and 14, that the referee may have erroneously imposed upon Rendziak the burden of proving that a lay accident (or facts justifying the application of the unusual strain doctrine) was the cause of the hernia. It remanded the record to the referee for application of the proper standard, in existence since 1972 ...


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