184 Pa. Super. 420 | Pa. Super. Ct. | 1957
Opinion by
Before discussing the legal question involved in this workmen’s compensation case, it will be necessary to detail at some length both the factual and the procedural situations.
On January 28, 1954, Albino Spina filed a claim petition seeking compensation for total and permanent disability as the result of an accident on March 16, 1953, while in the course of his employment. The cause and nature of the injury was alleged to be as follows: “Claimant was on platform. Platform collapsed and struck claimant on leg. Amputation of right leg at mid thigh, with injury to hip joint”.
Coming now to the procedural situation, Referee Sheldrake originally made an award for the loss of the right leg. Upon Spina’s appeal, the Board set aside the award of the Referee and substituted an award, not only for the loss of the right leg, but also for total disability as the result of the aggravation of an osteoarthritic condition in Spina’s lower back. On the employer’s appeal to the court of common pleas, the record was remitted to the Board for further hearing and determination. Referee Sheldrake again made an award for the loss of the right leg. Upon Spina’s appeal to the Board, the Referee’s award was vacated and the record was remanded for the appointment of an impartial orthopedic specialist. Referee Herman thereafter
Appellant’s position is that his injuries extend beyond the leg into the lower back, and that his claim is, and consistently has been, one for total disability under Section 306(a) of the statute.
In approaching our consideration of the question involved, we must bear in mind certain well established general principles. The workmen’s compensation act is a remedial statute, Gower v. Mackes, 184 Pa. Superior Ct. 41, 132 A. 2d 880, and is to be liberally construed in order to accomplish its broad humanitarian purpose: McCleary v. Pennsylvania Electric Co., 184 Pa. Superior Ct. 185, 132 A. 2d 389. The extent of physical disability is a complex factual matter dependent upon many variables, DeBattiste v. Laudadlo & Son, 167 Pa. Superior Ct. 38, 74 A. 2d 784, and a medical witness is not required to state mathematically the exact extent to which an injury aggravated an existing physical condition: Wess v. Diebold, Lumber Co., 141 Pa. Superior Ct. 76, 14 A. 2d 589. The Wess case, as does the instant case, involved lumbar osteo-arthritis. The question whether disability is total or partial is one of fact to be determined by the compensation authorities, and review by the appellate court is confined to ascertaining whether or not the finding of fact so made is based on legally competent evidence: Winters v. State Workmen’s Insurance Fund, 136 Pa. Superior Ct. 293, 7 A. 2d 112. The evidence must be viewed in the light most favorable to the appellant, for whom the compensation authorities have found: Keim v. Burkholder, 182 Pa. Superior Ct. 460, 127 A. 2d 752.
In the leading case of Lente v. Luci, 275 Pa. 217, 119 A. 132, a one-eyed man lost the use of his remaining eye. It was held that he was entitled to compensation under section 306 (c) for the loss of an eye and not under section 306(a) for total disability. The opinion in that case sets forth that section 306(c) fixes the total compensation for permanent injuries to certain
We are of the opinion that the instant situation is more closely analogous to that in Dunkle v. Baltimore and Ohio Railroad Co., 162 Pa. Superior Ct. 340, 57 A. 2d 714, wherein there was leg damage with no injury to the hip joint. However, claimant’s disability extended beyond the leg into the back as the result of an involvement of the sciatic nerve. Despite the employer’s contention that claimant should be compensated only
In the case at bar the compensation authorities found upon competent evidence (a) that the injuries received in the accident of March 16, 1953, extended beyond the leg proper and affected the physical structure of appellant’s body; and (b) that appellant was totally disabled as a result of the accident. In the proper performance of their function, they repudiated appellee’s hip joint insulation theory, and refused to give credence to the expert’s hypothetical estimate on cross-examination that, given a normal leg, appellant’s back condition would be only fifteen percent disabling. It was their prerogative to reject this portion of the testimony. See Muenz v. Kelso Beach Improvement Assn., 181 Pa. Superior Ct. 105, 124 A. 2d 153. As Referee Herman aptly remarked, “A physician is not a magician”. It is our conclusion that the award for total disability, as made by the compensation authorities, should not have been disturbed.
The judgment of the court below is vacated, and the record is remanded for the entry of judgment based upon the award of compensation for total disability.
At the first hearing (April 15, 1954) before Referee Sheldrake, as the result of the testimony of claimant’s medical witness, counsel for claimant moved to amend the term “hip joint” to “back”. The employer’s contention that this was a material variance was subsequently rejected by the court of common pleas.
This award originally (July 12, 1956) included interest on deferred payments. Since compensation payments at the proper rate had been made during the period of litigation, the award was subsequently (August 1, 1956) amended so as to eliminate the interest calculation.
This total of 300 weeks was in accordance with the law prior to the amendment of August 24, 1958, P. L. 1382, 77 P.S. 512, which increased the maximum period for partial disability to 350 weeks.
Act of 1915, P. L. 736, section 306(a), 77 P. S. 511.
See Toth v. Pittsburgh Terminal Coal Corp., 110 Pa. Superior Ct. 163, 167 A. 438; Cole v. Stewart, 111 Pa. Superior Ct. 561, 170 A. 311; Yanik v. Pittsburgh Terminal Coal Corp., 150 Pa. Superior Ct. 148, 27 A. 2d 564; Manno v. Tri-State Engineering Co., 159 Pa. Superior Ct. 267, 48 A. 26 122; Hendricks v. Patterson, 164 Pa. Superior Ct. 584, 67 A. 2d 652.
Niemi v. Asplundh Tree Expert Co., 154 Pa. Superior Ct. 600, 36 A. 2d 851; Roberts v. Frick-Reid Supply Co., 150 Pa. Superior Ct. 9, 27 A. 2d 671; Bausch v. Fidler, 277 Pa. 573, 121 A. 2d 507; Hayden v. Stony Spring Coal Co., 157 Pa. Superior Ct. 423, 43 A. 2d 384.