Calcite Quarry Corp. v. Workmen's Compensation Appeal Board

*354Dissenting Opinion bx

Judge Blatt:

I must respectfully dissent.

The essential issue here is whether or not there is substantial evidence which, if found to be credible, would support a finding that John Z. Fry (claimant) had suffered an accident within the concept of the unusual strain doctrine. I believe that there is and that, because no finding was made on this issue, the matter should now be remanded for the further consideration of the fact finder, the referee.

In considering whether or not the lifting done by the claimant on January 15, 1971 constituted an unusual exertion, the past practices of other drivers are totally immaterial. It is only the individual work history of the claimant which is at issue. Hamilton v. Procon, Inc., 434 Pa. 90, 252 A. 2d 601 (1969).

Here, although the majority state that the unloading of 100 pound bags was not unusual for the claimant, even though he may not have had occasion to unload bags of that weight since his last injury, it cannot and does not point to anything on the record which supports such a statement. George Patton, the president of Calcite Quarry Corporation, testified that the job of truck driver involved some lifting and that he assumed that the claimant did some lifting prior to his 1969 injury. Not only did he give no specific examples, however, but he certainly did not state that the claimant had ever lifted 100 pound bags prior to January 15, 1971. More importantly, the claimant himself testified as follows: “Q. But prior to January of 1971, January 15, 1971, didn’t you do any other additional work in addition to driving for Calcite? A. No, just mixer and then when this load come up [the 100 pound bags], he just got a bunch of boys together to get us to unload the truck quick.”

The claimant’s personal work history from March 15, 1970 to January 15, 1971, clearly establishes, in my *355opinion, that the lifting of the 100 pound bags on January 15,1971 was a unique occurrence for Mm, and this, I believe, would alone be sufficient to bring the case within the unusual strain doctrine. Even if, however, his activities prior to 1969 must be considered, the evidence on the record could still be interpreted to support a finding that he had never lifted such heavy bags in the entire course of his employment. This, however, is a question of fact for the fact finder and not for this Court, and, if there are any inconsistencies or questions of credibility to be resolved, it is an issue for the fact finder to determine. Universal Cyclops Steel Corporation v. Krawczynski, 9 Pa. Commonwealth Ct. 176, 305 A. 2d 757 (1973).

Although I agree with the majority in its treatment of the stipulation and also in its treatment of the causation of the claimant’s heart condition, for the reasons indicated above, however, I believe a remand would be proper. It would afford further consideration regarding the cause of the back injury and any disability resulting therefrom.

Judges Crumlish and Kramer join in this dissent.