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LYONS TRANSPORTATION LINES v. WORKMEN'S COMPENSATION APPEAL BOARD (POGANY) (08/20/84)

decided: August 20, 1984.

LYONS TRANSPORTATION LINES, INC., PETITIONER
v.
WORKMEN'S COMPENSATION APPEAL BOARD (POGANY), RESPONDENTS



Appeals in the case of Joseph P. Pogany v. Lyons Transportation Lines, No. A-82131.

COUNSEL

Terry L. M. Bashline, Hutton, McCrory, Bashline & Baginski, for petitioner.

Thomas P. Geer, for respondent, Blanche S. Pogany, widow of Joseph P. Pogany.

Judges Rogers, Colins and Barbieri, sitting as a panel of three. Opinion by Judge Barbieri. Dissenting Opinion by Judge Colins.

Author: Barbieri

[ 84 Pa. Commw. Page 547]

Lyons Transportation Lines, Inc.*fn1 (Petitioner) appeals here orders of the Workmen's Compensation Appeal Board (Board) in affirming a referee's grant of benefits on a Claim Petition filed by Joseph P. Pogany, employee, and on a Fatal Claim Petition for the employee's death filed by his widow, Blanche S. Pogany (Claimant) and the action of the Board in failing to grant its rehearing petition.

Joseph P. Pogany injured his back on February 11, 1980 in the course of his employment with Lyons Transportation Lines, Inc., while attempting to move

[ 84 Pa. Commw. Page 548]

    a steel drum weighing approximately 600 pounds with a fellow employee. The injury was duly reported to the employer's office manager and claimant was on and off work with his back problem until hospitalized on April 16, 1980.*fn2 During the hospitalization Pogany was found to have a malignant tumor. The referee found that claimant had suffered a crush fracture of the vertebra as a result of the injury and that this "trauma" aggravated a kidney tumor and precipitated an early death for Joseph Pogany, "the death occurring on July 5, 1980."

Procedurally, Petitioner seeks review alleging error in the awards for Pogany's lifetime disability and for his death and, separately, complains of the failure to honor his rehearing petition. The rehearing petition, although titled "PETITION FOR REHEARING," actually prays that the Board grant a rehearing in this matter to reconsider the decision to affirm the "Referee," and also prays that the Board "grant reargument in this case to analyze the medical evidence involved in light of the standards set forth" in certain other Board cases. As we stated in Anderson v. Workmen's Compensation Appeal Board (Myers), 51 Pa. Commonwealth Ct. 582, 414 A.2d 774 (1980), relied upon by the Board, while the decision to grant or deny a rehearing is within the Board's discretion and will only be reversed for abuse of that discretion, a rehearing should be granted only to allow presentation of "newly discovered, non-cumulative evidence or to allow the Board to correct a mistake of law or its

[ 84 Pa. Commw. Page 549]

    misapprehension of an issue." In our opinion, the Petition for Rehearing here presented no meritorious basis for the granting thereof and, therefore, we will affirm the Board's denial of that petition.

Petitioner's principal contention here, however, is that the referee and Board erred in finding a causal relationship between the injury, and the disability and death of Pogany on the basis of the testimony of Dr. Peter T. Chopping, since the testimony of Dr. Chopping was insufficiently positive and unequivocal to support the necessary findings of causation. We disagree.

First of all, it is our duty on an appeal such as this one to view the medical testimony accepted by the referee in the light most favorable to the claimant in whose favor factual determinations have been resolved. Cooper-Jarett, Inc. v. Workmen's Compensation Appeal Board (Brown), 61 Pa. Commonwealth Ct. 18, 432 A.2d 1128 (1981). Our examination of the record, and particularly the testimony of Dr. Chopping, convinces us that the necessary opinion testimony accepted by the referee is competent and adequate to establish the causal relationship found by the referee. As noted in Cooper-Jarett, where the employer appeals, as in this case, from a ...


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