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EDWARD OGDEN v. WORKMEN'S COMPENSATION APPEAL BOARD (CAROLINA FREIGHT CARRIERS CORPORATION) (06/29/89)

decided: June 29, 1989.

EDWARD OGDEN, PETITIONER,
v.
WORKMEN'S COMPENSATION APPEAL BOARD (CAROLINA FREIGHT CARRIERS CORPORATION), RESPONDENTS



COUNSEL

Ira H. Weinstock, Ira H. Weinstock, P.C., Harrisburg, for petitioner.

Martin J. Fallon, Jr., David A. Rosenblum, Swartz, Campbell & Detweiler, Philadelphia, for respondent, Carolina Freight Carriers Corp.

Palladino and Smith, JJ., and Kalish, Senior Judge.

Author: Palladino

[ 127 Pa. Commw. Page 288]

Edward Ogden (Ogden) appeals from an order of the Workmen's Compensation Appeal Board (Board) which affirmed a referee's decision denying workmen's compensation benefits to Ogden in connection with a truck accident that occurred on June 19, 1979.

Ogden was employed by Carolina Freight Carriers Corporation (Employer) as a tractor-trailer driver. On June 19, 1979, Ogden departed from Employer's Cleveland, Ohio terminal, heading for Carlisle, Pennsylvania. A short time later, at about 1:30 a.m., while traveling southeast on Ohio State Route 14 in Deerfield, Ohio, Ogden failed to negotiate a curve, careened off a concrete embankment and ended up with the tractor trailer coming to rest on its side in a field. At the accident site, Ogden was observed to be exhibiting classic symptoms of alcohol intoxication, including the odor of alcohol on his breath, glassy and bloodshot eyes, unsteadiness on his feet and loud and belligerent behavior. Ogden had also been observed crossing the center line of the highway for no apparent reason, approximately four miles before the accident site.

At the scene of the accident Ogden originally indicated that he was not injured, and refused medical treatment. However, after being placed under arrest for driving under the influence, Ogden decided he was injured and requested

[ 127 Pa. Commw. Page 289]

    transportation to the hospital. Following examination at the hospital, Ogden was transported to the State Highway Patrol Barracks at Ravena, Ohio, where he submitted to a chemical analysis of his breath. The result of the chemical analysis of Ogden's breath indicated a blood alcohol content of .18%.

On August 29, 1979, Ogden filed a claim petition for compensation alleging he suffered injuries in the nature of "concussion, seizures, lower back pain, leg problems and neck problems" as a result of the June 19, 1979 accident. Employer denied that the injuries were sustained in the course of employment or were causally related to Ogden's employment.

Following a series of hearings before Referee Thomas B. Noonan, a decision dated July 19, 1983 was issued denying benefits to Ogden. This decision was signed by Referee Joseph R. Kowitski with a notation above his signature "decision by Referee Noonan." Referee Noonan had died between the time the record was closed and the issuance of the July 19, 1983 decision.

Ogden appealed the July 19, 1983 decision, which was reversed, by the Board on the grounds that it was an error of law to publish an opinion of a deceased referee when it is not known whether the opinion was the final decision of the referee. The Board remanded the case with the following instructions:

We will remand for a Referee to review the entire record and make new Findings of Fact and Conclusions of Law based on the record as he sees it. Apparently the case was closed, therefore we can see no particular reason to allow further evidence. It might be advantageous, however, for a further hearing to be scheduled in order that the parties might set forth their various legal positions to the ...


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