*Church v. Standard Cast Iron Pipe & Foundry Co.

(3 Dept. Reports 667.)

Hearing de novo-When it will be granted.

After an appeal by a defendant had been dismissed by the Board, a petition for a re-argument was filed wherein it was alleged that the Referee had refused to allow it to present its defense because no answer had been filed with him. It was further alleged that the answer had been inadvertently sent to the Bureau at Harrisburg, instead of to the Referee. The Board thereupon appointed a disinterested surgeon to examine the claimant, and, upon his report and in consideration of the facts set forth in the petition, a hearing de novo was granted.

Appellant represented by Layton M. Schoch, Philadelphia.
Appellee represented by George Scott Stewart, Jr., Philadelphia.
ORDER GRANTING HEARING de novo.

BY MACKEY-Chairman-March 3, 1917.

On January 22, 1917, the Board dismissed the defendant's appeal for reasons fully set forth in an opinion then filed. On January 29, 1917, the defendant filed a petition for re-argument, alleging that at the hearing before the Referee it had been unable to present its defense because the Referee had stated that he would hear no such evidence because of the fact that there was no answer before him and that he would treat all the material allegations of the claimant's petition, in the absence of any answer, as being true.

The defendant therein set forth that it was, therefore, compelled to submit to an award that did it a great injustice because if it had been accorded the privilege of setting up a defense it would have offered evidence tending to show that there had never been an accident to the claimant and that his present condition was due, not to any such occurrence, but to a previously existing abnormality.

The defendant further strenuously reasserted that which it had affirmed in its exceptions filed to the Referee's report and urged that it had forwarded its answer to the Bureau at Harrisburg. Upon the presentation of this petition the Board granted a rule to show cause why the same should not be granted returnable at Harrisburg. On the day and hour thus fixed the parties through counsel appeared. In consequence of statements then made and arguments presented, both sides agreed that a subsequent meeting should be held at the offices of the Board in Philadelphia for the purpose of presenting testimony to establish the suggestions of the petition.

*See page 567, Cases Appealed to Courts.

Such meeting was subsequently held when it was clearly established by the testimony of witnesses for the defendant, by the statements of Referee Klauder and, in fact, by the admission of counsel for the claimant, that at the hearing before the Referee it was thoroughly understood that he, the Referee, would exclude any testimony tending to contradict the statements of the claimant's petition because of the fact that there was no answer of the defendant before him. It was further shown, without any contradiction, that the defendant had forwarded an answer through the United States mail directed to the Bureau at Harrisburg. This answer then either miscarried or its receipt at Harrisburg was ignored because of the fact that filing it there was irregular.

While the Board would be unwilling that the defendant should suffer any inconvenience or be compelled to submit to an award because of a technical error in the proceedings, nevertheless, the real question before us is whether or not an injustice has been done the defendant. The Board felt that it was its duty to make an independent inquiry as to the condition of the claimant. Section 421 of the Act gives the Board "at all times the power to make any investigation which it shall deem necessary to ascertain the facts."

We appointed Dr. Morris Booth Miller as an impartial surgeon and fixed the time and place for an examination of the claimant. The examiner's report has been filed as a part of the record of this case. The opinion of this disinterested surgeon is as follows:

"In my judgment, there is no evidence in this man of a rupture of the rectus muscle. He has a small fat hernia, which could have been caused by a slight tearing of the abdominal wall, followed by fat protrusion. In the sense of a real hernia containing abdominal contents, there is no basis for such a conclusion. He has a slight bulging at the right inguinal upper opening, which is an evidence of some muscle relaxation, probably due to his age and not associated with trauma. In a more general sense this man is distinctly and definitely neurasthenic. Occasionally slight fat herniae are associated with some gastric distress and slight abdominal discomfort, but in the main in my judgment his symptoms are due to his general nervous state, which could readily arise from an accident such as he described, suggested by anxiety and uncertainty as to the disposition of his insurance and frequent medical examinations. It is frequently seen in neurasthenia that the location of original injury is the focus upon which many phenomena center. Both his history and his physical state point clearly to the exist ence of his nervous upset.

"As to the prognosis, I would say that an operation, which entails no substantial risk or long hospital stay, will probably be of benefit to him, although not abso

lutely necessary. The benefit would arise by demonstrat-
ing to him clearly that the condition is not an important
one and also by giving the various doctors, who have a
more serious view of the situation, an opportunity of
demonstrating that he only has a fat hernia. In a
strictly physical sense he can do very well without an
operation, as I know myself, having had a similar con-
dition in my abdominal wall for about fifteen years. I
believe he is not able to work at the present time, but it
is not on account of his physical condition but on ac-
count of his nervous state, and it is difficult to outline
accurately a period when he will be over this nervous
upset."

In consequence of the foregoing recital of facts and this opinion, a hearing de novo is granted, time and place for the same to be hereafter fixed.

Church v. Standard Cast Iron Pipe & Foundry Co.

(3 Dept. Reports 2132.)

Burden of proof-Establishing a claim for compensation.

On the claimant's failure at the hearing to establish the happening of the accident by sufficient evidence, his petition will be dismissed.

Appellant represented by Layton M. Schoch, Philadelphia, and George S. Wolbert, Philadelphia.

Appellee represented by George Scott Stewart, Jr., Philadelphia.

OPINION BY THE BOARD-June 28.

HEARING de novo.

Present: Counsel for the claimant and for the defendant together with certain witnesses, appeared before the Compensation Board at its hearing room, Philadelphia, June 7 and 8, 1917.

A hearing de novo had been granted in this case May 3, 1917, by the Board. The power to grant such hearing after the confirmation of the Referee's award was challenged on appeal to the Court of Common Pleas No. 3, Philadelphia County. In an opinion filed by Judge Ferguson, 3 Dept. Reports, page 1567, the power of the Board was sustained and the authority for granting a hearing de novo fully pointed out.

FINDINGS OF FACT.

The testimony of several physicians was heard on the nature and cause of the injury alleged in the claimant's petition. The statements by the claimant in his petition having been denied by the defendant in its answer, the burden of proof was cast upon the claimant to show a personal accident sustained within the meaning of the Act while in the course of employment, and that the accident so suffered resulted in the disability alleged. However, no sufficient testimony as to the happening of an accident was presented before the Board and the medical testimony was in conflict as to whether the alleged accident was in any way the cause of the disability from which the claimant is suffering. The Board is therefore not justified in its opinion, in finding the necessary facts from which it can make an award against the defendant. The claimant's petition is therefore dismissed.

Johnson v. Bethlehem Steel Co.

(3 Dept. Reports 197.)

Practice-As to referring case back to referee for additional testimony.

The Board, for the time being, denied compensation to a claimant father with leave, however, "to present this case with the facts admitted to the Compensation Referee of this district for the purpose of taking testimony on the facts in the case that have been omitted by the Referee." Subsequently a hearing was held by the Referee at which the dependency of the father was satisfactorily established. award of the Referee was affirmed.

The

Claimant represented by R. J. Dever, Wilkes-Barre.
Defendant represented by Geo. A. Vary, Bethlehem.

OPINION BY MACKEY-Chairman-January 22, 1917.

Following the opinion handed down in the above case on September 27, 1916, Pa. W. C. B. D. 1916, page 206, the claimant took the advantage of the concluding sentence which was as follows:

"Under the foregoing conclusions of law, compensation in this case is denied for the present, with leave to the claimant to present this case with the facts admitted to the Compensation Referee of this district for the purpose of taking testimony on any facts in the case that have been omitted by the Referee."

Accordingly a hearing was held by Referee Houck on December 13, 1916. The Referee has returned his report to the Board together with a statement of material facts and his conclusions of law. We approve of the award made in the case.

We find that under our instructions the Referee has gone thoroughly into the facts of the dependency of the father and has augmented the testimony that has already been taken by evidence, in accordance with the suggestions of our opinion filed in the case. The dependency of the father has now been thoroughly established and we adopt the facts, conclusions of law and award of the Referee.

AWARD.

The claimant, Harry Johnson, dependent father of John Johnson, deceased, is hereby allowed compensation at the rate of 20% of $15.70 or $3.14 per week from April 11, 1916, to January 10, 1922, 300 weeks, $942.

Hayden v. Lehigh & New England Railroad Co.
(3 Dept. Reports 189).

Use of member, loss of Eye.

The claimant sustained an injury to his right eye whereby the sight of that eye was destroyed except to the extent of 22-100%. It was testified that the injured eye could regain normal vision in case the sight of the other eye should happen to be destroyed. Held, that the claimant had lost the use of an eye, and the award of the Referee was accordingly affirmed.

Claimant represented by H. M. Hagerman, Bangor.
Defendant represented by Howard A. Lehman, Philadelphia.

OPINION BY MACKEY-Chairman-January 23, 1917. Petition for modification of Compensation Agreement No. 14771. Clair E. Hayden, the claimant, was employed by the defendant and while discharging his duties, on the 11th day of May, 1916, met with an accident and sustained injuries which resulted in the loss of the use of his right eye. This eye was injured by pieces of brass piercing the cornea, and having entered the eye produced a traumatic cataract which wounded the anterior portion of the eye. Some of this brass was removed on the day of the accident by Dr. Uhler. On May 16, 1916, an operation was performed by Dr. Sweet for the removal of the cataract. On May 23, 1916, a second piece of brass was removed from the eye by the latter surgeon.