44 Pa. Commw. 1 | Pa. Commw. Ct. | 1979
Opinion by
The Remmey Division of A. P. Green Refractories. Company (employer) and John Makarewich (claimant) have cross-appealed from an order of the Workmen’s Compensation Appeal Board (Board), .which affirmed a referee’s decision awarding, compensation for total disability but denied attorney’s fees'and costs.
The claimant was employed as a press operator, but when no press work was available, he was routinely assigned to loading railroad cars with bricks and tiles. Between June 28 and 30,1971, the claimant was loading railroad cars with heavy tiles, lifting them over his head without assistance. At some point during this operation, he felt a “snapping sensation” in his left shoulder. Subsequently, he was admitted to a hospital for the treatment of an apparently unrelated hernia and the removal of fluid that had built, up in his left shoulder and arm. When he filed a. claim for compensation under The Pennsylvania Workmen’s Compensation Act (Act),
As of July 1, 1971 the Claimant was unable to perform the duties of a press operator and laborer and such disability continued up to the present time and for indefinite time into the future. Further, that the incident described [above] either precipitated or aggravated the disabling pathology, namely the destructive lesion in the left shoulder area, which if preexisting, had certainly not hitherto been disabling.
The referee thus made an award based on the existence of total disability and interest on accrued compensation was fixed at six percent per annum. He also found, however, that the employer had established a reasonable basis for the contest. The Board affirmed and both parties appealed.
The employer argues that the Board erred when it concluded that the referee, in his first opinion, had capriciously disregarded the evidence, that there was no finding in his second opinion upon which an award of total disability could be based, and that any compensation awarded should have been for the specific loss
Our review of the record convinces ns that the Board was correct when it held that the referee’s findings in his first decision demonstrated a capricious disregard of the evidence.
As to the nature of the claimant’s task when injured, the referee found in his first opinion:
That on June 28, June 29 and June 30 of 1973, the claimant performed the loading operation in question substantially in the same manner as he performed this function in the past (without assistance, lifting above head level, and without a wooden bench [to stand on].)
Further that at the time in question, the claimant handled bricks weighing substantially the same weights'as he had handled in the past.
In fact, as the Board pointed out, the unrebutted evidence established that, while the claimant had in the past loaded brichs (averaging 10 lbs.) unassisted, lifting them above his head, he had never been required, as he was on this occasion, to lift the heavier tiles (averaging 40-79 lbs.), without a bench and unassisted, to a level over his head. We agree with the Board, therefore, that there was no evidence to support the findings of the referee. Likewise, we agree with the Board that, although a referee is not required to accept as true even uncontradicted evidence, the referee here had no
On the issue of causal connection, the Board held in its remand, that “[t]he only competent evidence in the record, whether reviewing the testimony of one or another of the three physicians, is that there was some causal connection between claimant’s disabling symptoms and his exertions on those June days.” Again, we must agree with the Board, and we note further that, in light of this testimony,
The claimant here challenges the Board’s ruling that Sections 440 and 435 of the Act
As to Section 440, we have previously considered its operation, and have held that it is procedural, Workmen’s Compensation Appeal Board v. Levy, 363 A.2d 884 (Pa. Commonwealth Ct. 1976); Workmen’s Compensation Appeal Board v. Denny, 25 Pa. Commonwealth Ct. 395, 360 A.2d 306 (1976). As to Section 435, therefore, we see no reason why it should
Finally, in Jeannette Foods, Inc. v. Workmen’s Compensation Appeal Board, 39 Pa. Commonwealth Ct. 107, 394 A.2d 1309 (1978), we held that a claimant was entitled to 10 percent interest under Section 406.1 of the Act
The order of the Board, therefore, will be modified and affirmed.
Order,
And Now, this 2nd day of July, 1979, the order of the Workmen’s Compensation Appeal Board in the above-captioned matter is modified as follows and af
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §1 et seq.
“Under this doctrine, a claimant has suffered a compensable ‘accident’ when he or she suffers an • ‘unusual exertion in the course of work causing an unexpected and sudden injury.’ . . .” Workmen's Compensation Appeal Board v. Olivetti Corp. of America, 26 Pa. Commonwealth Ct. 464; 466-67, 364 A.2d 735, 736-37 (1976).
The employer also argues that the Board imposed certain findings on the referee on remand; however, this contention is totally without merit, and we shall therefore not discuss it.
We are, in addition, impressed with the claimant’s argument that when the referee has not seen or heard the witnesses, his findings are entitled to less deference. Cf. Vajentic Estate, 453 Pa. 1, 306 A.2d 300 (1973). '
Doctor Tornayj called by the employer, testified in pertinent part as follows:
REFEREE: Is your answer, doctor, that this occurrence did in some way bring about, using the word increase in pressure, did that bring about his relationship to the conditions that you found later?
A. Yes, because you see he had the disorder already.
REFEREE : We understand that.
A. No question in my mind, the increase in use created an increase in symtomatology, I agree to it.
REFEREE: Would you call it an aggravation of his previous condition?
A. It’s an aggravation of a pre-existing disorder.
A. If that history is accurate and the man developed . . . fluid a week afterwards that had to be aspirated then one would have to indicate there has been an exacerbation of preexisting lesions and whether or not what I saw in 1973 reflected any residual of that acute exacerbation I would be unable to say with any medical certainty... .
A. I have already testified that I felt it was entirely conceivable that the man had an aggravation of a previous condition.
Dr. Silverstein, called by the claimant, gave unequivocal medical evidence of causation:
A. I believe that the type of exertion that he had as described in the manner that was described; that is stretching the arm above the head, lifting heavy objects, actually in addition to causing an aggravation of his shoulder joint, which goes with a great deal of accumulation of fluid — also resulted in a compression or damage to the brachial plexus which caused, changes such as weakness in his left upper limb, atrophy, wasting of muscles and loss of reflexes controlled by these nerve elements.
Of course, compensation can be awarded under the unusual strain doctrine whether the strain precipitates the injury or aggravates a preexisting condition. Borough of Aliquippa v. Workmen’s Compensation Appeal Board, 18 Pa. Commonwealth Ct. 340, 336 A.2d 450 (1975) ; Muser v. I.B.M. Corp., 13 Pa. Commonwealth Ct. 12, 317 A.2d 352 (1974).
Dr. Silverstein testified that the claimant had a further disability which he characterized as “a psychogenic condition, or what we call a conversion hysteria, conversion syndrome.”
77 P.S. §§996 and 991.
The employer’s witness, Dr. Tornay, characterized the claimant’s disability as “mild.” There was also some question as to the relationship between the conversion hysteria and the unusual strain incident and as to the authenticity of the conversion hysteria.
77 P.S. §717.1.