74 Pa. Commw. 310 | Pa. Commw. Ct. | 1983
Opinion by
Katherine Borkowski (Claimant) appeals from a decision of the Workmen’s Compensation Appeal Board (Board) which affirmed a referee’s dismissal of her claim petition.
On January 10, 1974, Claimant slipped and fell backwards on a patch of ice on a sidewalk which led from the parking lot to the entrance of her place of employment, John F. Kennedy Medical Center (Employer or hospital). Claimant got up on her own and continued into work. Claimant was examined that day at the hospital dispensary as a result of her complaints of pain in the eoceyxgeal area. Claimant had experienced such pain occasionally since a fall in 1971.
At the hearings held on the claim petition, Claimant and Employer each presented medical testimony.
Claimant has preserved two issues for our review. First of all, Claimant contends that the referee erred in accepting the testimony of Employer’s medical expert since that witness only testified as to whether the fall caused her disability, not as to whether the fall could have aggravated the pre-existing condition. Secondly, Claimant contends that the referee, in finding of fact number 10,
Where the party with the burden of proof, here the Claimant, has failed to carry that burden, our scope of review is limited to determining whether the findings of fact are consistent with each other and with the conclusions of law and whether those find
After reviewing this case within the limiting standards outlined above, we are constrained to hold that the referee’s decision, as affirmed by the Board, must be affirmed. This appeal presents nothing more than Claimant’s disagreement with the referee’s choice between conflicting testimony. Eegarding the first issue presented by Claimant, Dr. Simon testified that Claimant’s medical problems were “not related at all” to the fall and the referee clearly could have inferred from this that Dr. Simon believed the medical problems were not aggravated by the fall.
The order of the Workmen’s Compensation Appeal Board, No. A-81663, dated March 25, 1982, is hereby affirmed.
While this earlier fall apparently also occurred at wort, no -laim petition, was ever filed regarding that event.
Known as spinal stenosis.
Claimant also testified.
Diagnosed by Dr. Simon as lumbar scoliosis.
10. On tbe causal relationship issue, the Claimant has presented the testimony of John Sbarbaro, M.D. In evaluating the testimony of Dr. Sbarbaro, the Referee has considered that he testified under the erroneous assumption that the employee was symptom free prior to January 10, 1974. Also, Dr. Sbarbaro was unaware that following the occurrence of January 10, 1974, the Claimant worked regularly for the ensuing 17 months, to May, 1975, without significant lost time.
The referee, in choosing to make this inference, may have taken into account the following:
Q. (Employer’s attorney) : Dr. Simon in the course of your practice as a board certified orthopedic surgeon, did you have an opportunity to see Katherine Borkowski?
A. (Dr. Simon) : Ves sir I did.
Q. When did you see her?
A. I saw her on July 12,1977.
*314 Q. Was a history taken from the patient at that time?
A. There was some difficulty obtaining the history.
Q. Was there an impediment to the history taken doctor?
A. Yes sir to a certain extent there was.
Q. What was that impediment?
A. And that is that I was told by Mr. Abraham her attorney that all the information was in your possession, that is Mr. Fallon’s possession, and that some of the questions that I asked he did not wish answered by the patient.
Q. (Claimant’s counsel) : Part of the history which you reviewed Dr. Simon indicated that after this fall in 1971 there was a period of three years of pain in the area of the coccyx is that correct?
A. (Dr. Simon) : Yes sir as I recall it was intermittent pain.
Q. And dating back to my questions about the sole cause, or causation as you testified to it, did you include in your characterization of no relationship between the January-1974 fall and what followed, whether or not that fa.ll may have aggravated, exacerbated or in any way effected á pre-existing condition?
A. No sir I was never asked that question.
Referee: Well are you asking that question, now Mr. Abraham?
Q. No your honor I haven’t.-
Referee: Okay.