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KENT SMITH v. COMMONWEALTH PENNSYLVANIA (12/22/81)

decided: December 22, 1981.

KENT SMITH, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, WORKMEN'S COMPENSATION APPEAL BOARD, PACESETTER SYSTEMS, INC. AND GREAT AMERICAN INSURANCE CO., RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in the case of Kent Smith v. Pacesetter Systems, Inc., No. A-77798.

COUNSEL

Thomas P. Geer, for petitioner.

Eugene F. Scanlon, Jr., Dickie, McCamey & Chilcote, for respondent, Pacesetter Systems, Inc.

Judges Rogers, Williams, Jr. and Palladino, sitting as a panel of three. Opinion by Judge Palladino.

Author: Palladino

[ 63 Pa. Commw. Page 342]

Petitioner appeals from an order of the Workmen's Compensation Appeal Board (Board) which affirmed a referee's decision denying benefits to Petitioner pursuant to Section 301(c)(1) of The Pennsylvania Workmen's Compensation Act (Act).*fn1

On July 28, 1977, while in the course of his employment, Petitioner injured his legs in a work-related accident. Despite the accident, Petitioner continued his employment duties. In the latter part of August, 1977, Petitioner was injured outside the course of his employment in a fall from the porch of his house. Petitioner was discharged from employment on September 9, 1977. On September 15, 1977, Petitioner sought medical treatment of his injuries. Thereafter, Petitioner underwent knee surgery and filed a claim petition for total disability benefits.

In his first decision, the referee found (1) that the work-related injuries Claimant sustained on July 28, 1977, were "aggravated" by Claimant's fall from the porch of his home and (2) that Claimant was totally disabled from September 15, 1977, onward. Reviewing the appeal filed by Claimant's employer, the Board determined that the referee had failed to make a necessary finding, i.e., "whether the fall at home was caused by or related to the . . . work-related injury of July 28, 1977." Therefore, the Board remanded the case to the referee, instructing him (1) "to make a finding, if he [could], connecting the asserted injury of July 28, 1977 with causing the fall at home" and

[ 63 Pa. Commw. Page 343]

(2) to hold further hearings to allow the parties to present evidence concerning the relationship between the work and home injuries. Although the referee scheduled hearings, the parties did not present additional evidence, but instead, agreed that the record should be closed upon the submission of memoranda.

In his second decision, the referee found that "[C]laimant's fall from his porch . . . in mid-late August did not result from the work-related injury of July 28, 1977 nor was same the probable consequence of the July 28, 1977 injury." The referee also determined that Claimant became "totally disabled as the result of the fall from his porch in mid-late August, 1977." Subsequently, without taking additional evidence, the Board affirmed the referee's decision, and Claimant appealed to this Court.

In workmen's compensation cases "the claimant has the burden of establishing the right to compensation and all of the elements necessary to support an award." Halaski v. Hilton Hotel, 487 Pa. 313, 317, 409 A.2d 367, 369 (1979). Where, as here, the party with the burden of proof did not prevail below, this Court's scope of review consists of determining whether the factual findings are consistent with each other and with the conclusions of law and can be sustained without a capricious disregard of competent evidence. Republic Steel Corp. v. Workmen's Compensation Appeal Board, 56 Pa. Commonwealth Ct. 57, 423 A.2d 1142 (1981).

On appeal to this Court Claimant argues that the Board should not have remanded this case to the referee, or alternatively, that despite the need for a remand, the Board's remand order ...


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