Fry v. Calcite Quarry Corp.

ROBERTS, Justice

(concurring).

In his findings of fact in support of his award to appellant, the referee found:

“6. The Claimant and Defendant stipulated the Claimant did sustain an injury to his back as a result of the accident on January 15, 1971, and that Claimant is entitled to the benefits of the Pennsylvania Workmen’s Compensation Act because of his back injury.”

Because appellees failed to except to finding no. 6 in their appeal to the Workmen’s Compensation Board, they are precluded from arguing on appeal that appellant did not sustain a compensable injury to his back. See Walker v. Nu-Car Carriers, Inc., 164 Pa.Super. 246, 253, 63 A.2d 484, 487 (1949); Vadnal v. Krsul-Kutchel Coal Co., 149 Pa.Super. 269, 273-74, 27 A.2d 709, 710-11 (1942); Nesbit v. Vandervort & Curry, 128 Pa.Super. 58, 63-65, 193 A. 393, 396-97 (1937). Therefore, the Commonwealth Court erred in concluding that the record failed to support a finding of compensable injury.*

*616Because I agree that there is competent evidence to support the referee’s finding that appellant’s coronary ailment resulted from the injury to his back, I concur in the result.

“There is absolutely no basis in the record for finding of fact No. 6. . . .

“For this reason alone, the referee’s award must be reversed, for absent finding of fact No. 6, there is no finding of an accident, compensable or otherwise.”

Calcite Quarry Corp. v. Workmen’s Compensation Appeal Board, 14 Pa.Cmwlth. 347, 351, 322 A.2d 403, 405 (1974).