attorney cannot both prosecute the case and advise the tribunal
How later courts described this case
- attorney cannot both prosecute the case and advise the tribunal
Written by the judges who cited it.
The opinion
Dissenting Opinion by
Judge Babbieri :
Most respectfully, I must dissent. The referee’s finding that Claimant’s injury was suffered “in the course of, and was related to, his employment” is supported by evidence which the referee as the trier of fact could rightfully accept. In accepting the Board’s reversal based upon its contrary findings, the majority states: “ [t]he Board found that the Claimant *545 chose to take the discs home for personal reasons, and did so for his own convenience rather than that of the Employer.”
Since, in my view, whether Claimant’s acts were for personal reasons or for his own convenience rather than that of his Employer are questions of fact turning upon credibility, it was clear error for the Board, without taking additional evidence, to substitute its fact determinations for those of the referee. Artrip v. Workmen’s Compensation Appeal Board (Mace, Inc.), 54 Pa. Commonwealth Ct. 502 , 421 A.2d 1254 (1980); Universal Cyclops Steel Corp. v. Krawczynski, 9 Pa. Commonwealth Ct. 176 , 305 A.2d 757 (1973). For this reason, I cannot agree with the majority’s view that the Board’s findings should be approved if they can be supported by evidence in the case.
Also, while it may not be necessary to reach the corporate executive employe question, since the injured worker in this case was president of the corporate employer and as such was an “executive officer” of the corporate employer, entitled to employee status under the terms of Section 104 of The Pennsylvania Workmen’s Compensation Act, Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §22, the “working corporate executive” has been accorded a broader scope of employment for workmen’s compensation purposes than might otherwise exist. Forschner v. Workmen’s Compensation Appeal Board, 60 Pa. Commonwealth Ct. 258 , 431 A.2d 374 (1981); Artrip . Since we must view the evidence in the light most supportive of the referee’s finding, we note that there is no discernable reason why the referee could not properly believe that the injured worker, in the corporate executive role of his dual employe relationship, was acting in what he considered, as corporate president, to be in the best interest of the company, the employer. The referee found that “some of his employer’s work” was done *546 in Claimant’s house and that “he went to the office only 3 or 4 days per week. ’ ’
Accordingly, for the foregoing reasons, I would reverse and reinstate the decision and award of the referee.