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MOSES L. BROWN v. WORKMEN'S COMPENSATION APPEAL BOARD (NATIONAL TUBE COMPANY -- UNITED STATES STEEL CORP.) (06/28/82)

decided: June 28, 1982.

MOSES L. BROWN, PETITIONER
v.
WORKMEN'S COMPENSATION APPEAL BOARD (NATIONAL TUBE COMPANY -- UNITED STATES STEEL CORP.), RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in the case of Moses L. Brown v. National Tube Company -- United States Steel Corp., No. A-79485.

COUNSEL

Daniel E. Long, Jr., for petitioner.

Louis A. Raimond, for respondent, United States Steel Corporation.

Judges Blatt, Williams, Jr. and MacPhail, sitting as a panel of three. Opinion by Judge MacPhail.

Author: Macphail

[ 67 Pa. Commw. Page 247]

Moses L. Brown (Claimant) filed a claim for workmen's compensation benefits which indicated that Claimant sustained work-related injuries to his elbow, shoulder and back sometime during the week of January 11-17, 1976. His petition said he notified his foreman of this injury on May 25, 1976.*fn1

At a referee's hearing held October 6, 1977 before Referee Markovitz, Claimant, who was the only witness, testified that he had suffered a second work-related injury when he twisted his back "about a year later." Claimant also testified that his last day of work was March 18, 1977.*fn2 When it became apparent that Claimant had suffered two separate work-related injuries but his petition identified just one, his

[ 67 Pa. Commw. Page 248]

    counsel asked for leave to amend the petition to include both injuries. Oral permission to do so was granted by the referee with the understanding that Claimant's employer would have the opportunity to answer the petition as amended. The referee also stated that arrangements would be made for a future hearing to afford the employer the opportunity to examine Claimant relative to the second injury. At the conclusion of the hearing, however, the referee then stated, after an off record discussion that it was understood that Claimant would file a second petition related to the alleged second injury and that the employer would have fifteen (15) days to reply to it. The hearing was then continued to enable Claimant to secure medical evidence to support his claim, presumably as to either or both injuries.

On February 5, 1979, the same referee reconvened the hearing. Claimant's counsel submitted that he was still unable to obtain medical evidence. Nothing was mentioned at that hearing about a second petition having been filed. Employer's counsel moved to dismiss the claim because no medical evidence had been produced and because Claimant had failed to prove notice to the employer of "the injury". The referee took that motion under advisement and gave Claimant forty-five (45) days to procure his medical testimony.

On March 4, 1980, the hearing was again reconvened before a different referee and with different counsel representing Claimant and the employer. Claimant, again, was the only witness who testified and he repeated virtually everything he said at the first hearing. When Claimant began to discuss the injury allegedly sustained in January, 1977, employer's counsel objected at which point the referee ruled as follows:

[ 67 Pa. Commw. Page 249]

In consideration of the motion of defendant's counsel, testimony may be given pertinent to the only petition in front of us, and that is an ...


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