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Brown v. Allied Plumbing and Heating Co.

Decided: February 3, 1943.

FOSTER V. BROWN, PETITIONER-DEFENDANT,
v.
ALLIED PLUMBING AND HEATING CO., RESPONDENT, AND AUGUST ARACE AND SONS CO. (IMPLEADED BY ALLIED PLUMBING AND HEATING CO., ON ITS APPEAL TO PLEAS), PROSECUTOR; FOSTER V. BROWN, PETITIONER-PROSECUTOR, V. ALLIED PLUMBING AND HEATING CO., RESPONDENT-DEFENDANT



On certiorari.

For the petitioner-defendant and prosecutor Brown, Nicholas A. Tomasulo and David Roskein (Harry Cohn, of counsel).

For the respondent-defendant Allied Plumbing and Heating Co., Cox & Walburg (Arthur F. Mead, of counsel).

For the prosecutor August Arace and Sons Co., Henry M. Grosman (Isidor Kalisch, of counsel).

Before Brogan, Chief Justice, and Justices Parker and Porter.

Porter

The opinion of the court was delivered by

PORTER, J. This is a compensation case. Brown claims to have been injured on August 31st, 1939, while employed by Allied Plumbing and Heating Co. (hereinafter called Allied) and again on March 12th, 1941, while employed by August Arace and Sons, Inc. (hereinafter called Arace). He filed separate petitions for compensation with the Workmen's

Compensation Bureau against both employers. The Bureau heard both petitions together by stipulation of counsel for all the parties. It held that the first accident was compensable but not the second concluding that the occurrence of March 1st, 1941, was a recurrence of the injuries suffered on August 31st, 1939. Compensation was therefore awarded against Allied and the claim against Arace was dismissed. An appeal was taken to the Union County Court of Common Pleas by Allied. Judge McGrath who heard the matter reviewed the testimony and found the facts to be that there were two compensable accidents and that the Bureau erred in finding against Allied alone and in dismissing the petition as against Arace.

The finding of facts by the court as shown by its order remitting the cause to the Bureau was as follows:

"Petitioner, while working for August Arace and Sons, Inc., in March, 1941, hurt his back while threading pipe. The work required him to pull the handle of a pipe-threading tool. At the time he was making $80 to $90 a week, sometimes $120, part of which was overtime. His actual rate does not appear. He says he notified his employer of the accident and I am satisfied that he did. The deputy commissioner gave him an award, but instead of giving judgment against August Arace and Sons, Inc., his employer at the time the accident happened, he gave judgment against a former employer, the Allied Plumbing and Heating Co., and at the rate of his former wages.

"It appears that in August, 1939, petitioner had hurt himself while in the employ of the first employer, the Allied Plumbing and Heating Co., and the deputy commissioner thought that the injury to his back while employed by Arace and Sons was a recurrence of the old injury which petitioner had received previously while working for the Allied Plumbing and Heating Co. This petition against August Arace and Sons, Inc., was dismissed. This was erroneous.

"A reading of the testimony shows that as a matter of medical diagnosis the second injury was not a recurrence of the first. Dr. Edgar, who first saw the man in September, 1939, and again in March, ...


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