29 A.2d 354 | Pa. Super. Ct. | 1942
Argued November 10, 1942.
Claimant received an injury to his spine on February 3, 1933. On October 23, 1933 he suffered a second injury resulting in an inguinal hernia. Separate compensation agreements were entered into with defendant employer for each of these injuries. The first agreement was terminated by a final receipt given by claimant on August 26, 1933; compensation for disability from the hernia ended by order of the referee as of September 24, 1934. In a proceeding brought by claimant on August 1, 1934, the final receipt for compensation for the first injury was set aside and the board found claimant to be disabled and awarded compensation accordingly. On an appeal from the judgment entered on that award we reversed and remitted the record for further proceedings (
The first appeal to this court determined that there was sufficient evidence to set aside the final receipt given on August 26, 1933; that question has been decided finally and is not now before us. The record was remitted for a single purpose; for a determination of the basic issue, upon proper findings, whether claimant was still disabled as a result of the first injury, unaffected by the second accident and, if so, for an award reflecting the extent of that injury.
The referee to whom the case was referred on this issue properly considered the question de novo (although no additional testimony was taken; see § 427 of the Compensation Act as amended,
It is now unimportant that the board in the original proceeding found that claimant's disability resulted from the first injury as aggravated by the second. Remitting a compensation case to determine a basic question of fact (in this case whether claimant's disability is attributable to the first accident) is the equivalent of ordering a new trial on that issue. In the common pleas the award of a new trial nullifies the first verdict and all inferences from it as completely as though there had never been a previous trial. "A new trial being ordered, the case is, of course, restored to the status it had before any trial took place and is fully open to be tried de novo: Pa. Co. forIns. on Lives etc., Appellant, *623 v. Lynch,
There is ample evidence of an accident on February 3, 1933 and from the circumstances it well may have been serious. Claimant testified that he was working alone and in pushing a car weighing 3,500 pounds up hill with his back to the car, his feet slipped and he fell to a sitting posture and the bumper of the car returning down grade struck him in the back. He was examined by the company doctor and put to bed and remained there for five weeks. Although suffering almost constant pain he returned to work on August 15, 1933, not because he was fit to work but because of a responsibility, which he felt keenly, to support his wife and eight children. Moreover, his testimony does not necessarily indicate that his disability was aggravated by the second injury. That remained a question largely for his medical witnesses. He testified that on October 23, 1933 while he and his buddy were pushing a car up grade he was again struck in the back by a car under similar circumstances. *624 Although claimant then left his work because of the pain in his back it is significant that the company's doctor who examined him found no evidence of injury other than a hernia and the compensation agreement entered into following that accident describes the injury as a hernia and nothing more. True, to the question "And this injury received on October 23, 1933, just aggravated the old injury?" claimant answered: "That is all and I felt worse ever since." The answer does not necessarily conclude claimant nor amount to an admission by him that his present disability is attributable to the aggravation of the first injury by the second. The question was leading and the answer was not comprehensive — he did sustain a hernia and his answer made no reference to it. Claimant's buddy testified that he complained of pain in his back constantly before as well as after the second accident. The significance of this reply was for the triers of the facts.
Dr. Albert Berkowitz first examined claimant on April 19, 1934. He was given a history of an accident on February 3, 1933 with an injury to claimant's back, as a result of which claimant was obliged to remain in a prone and tilted position with his lower extremities weighted for a period of about five weeks. (There is no dispute as to that and the board so found.) He had a history of a rupture on October 23, 1933 but of no other injuries subsequent to the first accident. On examination this witness found "some limitation of motion in the spine so that anterier flexion was limited to an angle of about forty-five degrees, and there was muscular spasm over both lumbar muscles." He said further: "I took x-rays and they showed a notch of the anterior superior portion of the third, fourth and fifth lumbar vertebrae, which I interpreted as being fractures of the superior anterior portion of these vertebrae" — "a chipping of the front top portion of three vertebrae." His conclusion was that because of *625 the injury which claimant sustained from the first accident he "has total disability for all manual types of labor." Claimant was a coal miner and there is no evidence that he was ever qualified to do anything else.
Dr. M.A. Blumer, an orthopedic surgeon, examined claimant and the x-ray plate of April 19, 1934. He too, found limitation in bending motion of the body accompanied by considerable pain. His impression from the clinical objective findings was that of a traumatic involvement of the lumbar spine. In the x-ray plate he found evidence of arthritis but also "a tearing of the superior anterior portion of the fifth, the fourth, and the third lumbar vertebrae" where they are attached to the anterior ligament. "This [he said] is evidence of traumatic origin, because if it were an arthritic exostosis or spur it would extend from the auricular surface of the body and not from the portion of the body to which the anterior ligament is attached." He found evidence of secondary arthritic processes but from the evidence of disability of traumatic origin, it was his opinion that claimant was totally disabled, from that cause.
Dr. P.A. Brown, a roentgenologist, made x-ray examinations of claimant's back on February 14, 1933, April 25, 1933 and February 21, 1934. He testified that the plates show little change during the period and no evidence of bone injury. He found exostosis of the anterior border of the fourth and fifth lumbar vertebrae but interpreted these as evidence of arthritis and nothing more. His opinion was based solely upon his x-ray examination; he did not have a history of the case.
Dr. Blumer, recalled, was shown the x-ray plate of February 1933; in it he found evidence of a chipping of a small piece of bone from the fifth vertebrae and in his opinion trauma caused the separation by "the pull *626 of the ligament away from the body in his fifth lumbar." He found the same condition in the film of February 21, 1934, and in all of the other plates including that taken by Dr. Berkowitz. It was his conclusion that "arthritis was pre-existing to the trauma and the trauma was simply a condition superimposed on the old arthritic condition." He again expressed an opinion unequivocally that "the cause of his present disability is due to the injury received in February of 1933." As to these plates, the testimony of Dr. Berkowitz, when recalled, was substantially the same.
On appeal we must view the evidence in the light most favorable to the claimant since the findings are in his favor. Hockenberryv. State Wkm's Ins. Fund,
The judgment gives the defendant credit for the period August 15 to October 24, 1933 when claimant received wages equal to his former earnings. The 1939 amendment of 306b,
The judgment, otherwise, is affirmed.