191 Pa. Super. 408 | Pa. Super. Ct. | 1959
Opinion by
The claimant, a coal miner, suffered a fracture of the first lumbar vertebra from a fall of rock in the course of his employment. The employer or the insurance carrier paid claimant a total of $2,827 over a period of 87 weeks, in accordance with a compensation agreement entered into for total disability. At the end of that period the defendants on February 6, 1957, petitioned for a termination of the agreement under §306(f) of the Act of June 21, 1939, P. L. 520, 77 PS §531, as further amended. In the petition they averred that claimant had forfeited all rights to further compensation because he had refused to submit to an operation which it was contended would free him from disabling symptoms and would enable him to return to some form of gainful occupation.
At the hearing before the referee Dr. C. C. Yount, a well qualified orthopedic surgeon, from his examination of claimant, testified: “The x-rays revealed fracture of the first lumbar vertebra with destruction of the cartilage and collapse of the nucleus pulposus, that is the disc, with narrowing of the interspace and a persistent mild kyphotic [i.e., angular curvature] deformity. In order to hasten this patient’s return to function, I believe that a bone graft should be done to fuse the lumbar spine. This would insure stability, in other words, lack of motion and relief from pain and maybe permit return to function.” In his opinion the prognosis for recovery, approaching, but “considerably less” than, full restoration of claimant’s ability to work, was reasonably good. But he conceded that the operation was not entirely free from danger. And he testified that he “absolutely and finally” could not foretell the
There is error however in the judgment entered by the lower court based upon compensation payments under the agreement for total disability for the period ending February 25, 1959. Dr. Yount conceded that claimant no longer was totally disabled but that he could perform “certain types of work . . . which do not require much function of that zone of the torso.” Dr. Ritter testified that as a result of the conservative treatment which claimant had been receiving he was only 50% disabled on June 5, 1957 when the witness last examined him. Thus, under all of the evidence the claimant is no longer totally disabled and the proceeding, of necessity, must be returned to the board for specific findings as to the degree of claimant’s disability from injury and for an appropriate award. Cf. Hanyok v. Pa. Coal & Coke Corp., 155 Pa. Superior Ct.
Case remanded to tbe Workmen’s Compensation Board for further proceedings consistent herewith.