Appeal from the Order of the Workmen's Compensation Appeal Board, in the case of Lewis Cudo, Dec'd, Barbara, Widow v. Hallstead Foundry, Inc., No. A-86879.
David E. Heisler, Lenahan & Dempsey, P.C., for petitioner.
Robert G. Dean, with him, John R. Dean, for respondent, Lewis Cudo, Deceased; Barbara, Widow.
Judges MacPhail and Colins, and Senior Judge Rogers, sitting as a panel of three. Opinion by Judge MacPhail. Judge Colins dissents. Senior Judge Rogers concurs in result only.
[ 115 Pa. Commw. Page 380]
Hallstead Foundry (Petitioner) appeals from an order of the Workmen's Compensation Appeal Board (Board) which affirmed a referee's order granting Barbara Cudo (Claimant) death benefits and attorney's fees. We reverse.
Claimant filed a fatal claim petition on September 4, 1979 alleging that her husband, Lewis Cudo (Decedent), died of a heart attack suffered while he was working in Petitioner's factory. The referee found that Decedent's heart attack was work-related and awarded benefits to Claimant. The Board reversed the referee on the ground that he relied on equivocal medical testimony. The Board's decision was mailed to the parties on September 4, 1980.
[ 115 Pa. Commw. Page 381]
Claimant attempted to appeal the Board's decision to the Court of Common Pleas of Susquehanna County on September 26, 1980. The appeal was quashed, apparently because the Common Pleas Court ruled, correctly so, that it did not have jurisdiction to take an appeal from the Workmen's Compensation Appeal Board. See Section 763 of the Judicial Code, 42 Pa. C. S. § 763. On November 14, 1980, Claimant filed a petition with the Board for rehearing alleging the existence of newly discovered evidence which could not have been discovered before the close of the evidentiary hearing before the referee. The Board on January 8, 1981 ordered the case reopened and remanded it to the referee to permit Claimant to present the evidence. Petitioner appealed this order to this Court. By order dated March 4, 1982, we quashed the appeal as being from an interlocutory order. See Hallstead Foundry v. Workmen's Compensation Appeal Board et al., 66 Pa. Commonwealth Ct. 445, 445 A.2d 254 (1982).
After receiving additional testimony presented by Claimant, the referee awarded benefits and the Board affirmed. It is from this affirmance that Petitioner brings this appeal.
Petitioner argues that the Board incorrectly ordered a rehearing for the purpose of accepting what Claimant purported to be newly discovered evidence. We agree.
At the rehearing, Claimant presented the testimony of Dr. William H. Sewell, who had treated Decedent between 1966 and 1970 and had performed an operation on Claimant's heart. Claimant also presented the testimony of one of Claimant's co-workers.
This Court said in Young v. Workmen's Compensation Appeal Board (Britt & Pirie, Inc.), 72 Pa. Commonwealth Ct. 471, ...