10 A.2d 118 | Pa. Super. Ct. | 1939
Argued September 27, 1939. This is an appeal from the judgment and order of the court below dismissing exceptions and affirming the decision of the Workmen's Compensation Board and the referee.
Albert Pelosi, claimant in this case, met with an accident on October 8, 1936, while employed by defendant. On November 7, 1936, the parties entered into an open agreement under the terms of which claimant drew compensation for total disability from October 15, 1936, until June 9, 1937. Defendant filed a petition for termination and claimant filed an answer denying the allegations and averring that he was still totally disabled. The referee filed a decision in which he found that all of claimant's disability had ceased on June 9, 1937, but that claimant had suffered permanent, unsightly facial disfigurement on account of which he was entitled to compensation for a period of 100 weeks. The referee allowed defendant to take credit for compensation for total disability from October 15, 1936, until June 9, 1937, a period of 34 weeks, and entered an award in claimant's favor for compensation for the balance of the period, or an additional 66 weeks. No question has been raised as to claimant's permanent, unsightly facial disfigurement and his right to an award of compensation therefor.
The sole question before this court, therefore, is *32 whether there is any legally competent evidence to support the finding of the referee and board that any and all disability of the claimant ceased on or before June 9, 1937.
Whether a claimant is totally disabled is a question of fact and is for the consideration and determination of the compensation authorities: Byerly v. Pawnee C. Co. et al.,
The evidence adduced by the defendant was the testimony of two doctors. One of them, Dr. Bartle, specializing in nervous and mental diseases, examined the claimant in his office on September 27, 1937. He testified as follows: "Q. Doctor, is it your opinion from a neurological standpoint that this man is able to return to his customary duties as a tile setter? A. Yes. Q. Do you find anything of a disabling nature or condition from a neurological standpoint? A. Not from a neurological standpoint." This testimony was definite and positive insofar as any neurological disability of claimant is concerned.
The other witness, Dr. Hudson, called by defendant, was also a medical expert. This witness had examined claimant on three occasions, December 17, 1936, January 28, 1937 and June 2, 1937. On direct examination *33 he testified as follows: "Q. As a result of your examination on June 2, is it your professional opinion that this man is able to return to his work as a tile setter? A. I think so."
Appellant contends that Dr. Hudson's opinion, being given in the terms "I think so", fails to meet the standards of certainty of medical opinion set by a series of decisions of our appellate courts. An examination of the most recent authorities on this particular point, however, leaves appellant's contention without foundation. In Jones v. Philadelphia Reading C. I. Co.,
It appears from the record that the evidence adduced by claimant clearly contradicts that adduced by defendant on the question as to whether or nor claimant was able to return to his work as a tile setter. Nevertheless, we are of the opinion that the testimony of defendant's expert medical witnesses is legally competent and sufficient to sustain the finding made by the referee and the board that claimant was no longer totally
disabled. This evidence, however, does not of itself support a finding that all disability had ceased. The proper test is not whether claimant is able to do exactly the same kind of work as he did before the injury, but whether his earning power, in any kind of employment for which he is fitted, has been destroyed or impaired. See Byerly v. Pawnee C. Co. et al., supra; Henry v.Pittsburgh Railways Co.,
Accordingly, it is ordered that the case be remanded to the lower court with instructions to remit it to the Compensation Board for the purpose of taking testimony on the question of the extent of partial disability, if any, and loss of earning power.