18 Pa. Commw. 572 | Pa. Commw. Ct. | 1975
Opinion by
This is an appeal filed by Chamberlain Manufacturing Corporation (Chamberlain) from an order of the Work
Schoonover was employed by Chamberlain as a laborer. His job entailed the pushing of shells
Hearing were held before a referee at which the only witnesses were Schoonover (appearing without counsel) and a physician presented by Chamberlain. The physician testified that the surgery necessary to correct the hernia condition was not feasible because Schoonover was suffering from portal cirrhosis which the physician “felt was secondary to alcoholism.” The physician stated that the cirrhosis was “a chronic disease which takes years to develop,” and that the reason that it was not feasible to perform surgery on Schoonover was the medical knowledge that “there is a much higher incidence of recurrence [of hernia] in patients who have portal cirrhosis.” The prog
The referee’s findings included the following:
“5. We find as a fact that the claimant has not undergone surgery for the correction of the inguinal hernia because of the fact that he suffers cirrhosis of the liver. We therefore find as a fact that the claimant continues to be totally disabled due to the hernia he sustained on August 23, 1972.”
On appeal to the Board, the referee’s finding was affirmed, the Board concluding that:
“The Defendant [Chamberlain] has not sustained his burden of proof to show that the Claimant’s [Schoonover’s] disability has changed. . ..”
The Board then ordered the payment of compensation at the rate of $94 per week beginning December 14, 1972 and continuing indefinitely thereafter.
On appeal to this Court, Chamberlain presents the narrow issue of whether the Board committed an error of law in ordering compensation to Schoonover where the hernia injury is clearly work-related but where surgical repair is not feasible because of the nonwork-related cirrhosis. Chamberlain contends that compensation should be terminated upon the expiration of what would be a reasonable period of time during which disability would be experienced following hernia surgery, if surgery had been performed. This contention is apparently based upon Chamberlain’s reasoning that Schoonover’s present dis
Review by this Court is limited to determining whether constitutional rights were violated, an error of law committed or any necessary finding of fact was not supported by competent evidence, and where, as here, the party with the burden of proof has not prevailed below, we must determine whether the referee’s findings are consistent with each other, and with the conclusions of law, and can be sustained without a capricious disregard of competent evidence. Foster Wheeler Corporation v. Workmen’s Compensation Appeal Board. 13 Pa. Commonwealth Ct. 45, 317 A.2d 922 (1974).
Section 301 (c) of the Workmen’s Compensation Act, Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §411 (Supp. 1974-1975), sets forth the definition for a compensable injury as follows:
“(1) The terms ‘injury’ and ‘personal injury,’ as used in this act, shall be construed to mean an injury to an employe, regardless of his previous physical condition, arising in the course of his employment and related thereto, and such disease or infection as naturally results from the injury oris aggravated, reactivated or accelerated by the injury. .. .”
There can be no doubt that Schoonover’s hernia is a compensable injury. The only question which remains is whether his compensation should be terminated because corrective surgery is not feasible due to the nonworkrelated cirrhosis. Chamberlain contends that the hernia in the instant case did not aggravate or accelerate the cirrhosis, that the hernia did not cause the cirrhosis to flare up and disable the claimant, and that the hernia had no effect upon the underlying condition of the cirrhosis. Chamberlain then concludes that the cirrhosis had the effect of precluding the surgical repair of the hernia, and
This case having been instituted by the employer through the filing of a petition to terminate, the burden was upon Chamberlain to prove that Schoonover’s disability has ceased, or that his disability was no longer due to his compensable injury. See Tioga Textiles Associates, Inc. v. Workmen’s Compensation Appeal Board, 13 Pa. Commonwealth Ct. 492, 319 A.2d 211 (1974). Recently this Court had occasion to pass upon a similar issue in the case of Folmer Ice Cream Company v. Workmen’s Compensation Appeal Board, 17 Pa. Commonwealth Ct. 34, 330 A.2d 584 (1975). In that case the employe could not have her disability corrected by surgery due to her obesity. In that case, the employe unsuccessfully made attempts to reduce her weight. We held that the prayer of the petition to terminate, filed by the employer, could no be granted because of the fact that the employe continued to be disabled by a work-related injury and had not refused reasonable medical services. Our holding in Folmer, supra, is controlling in this case.
The record shows that Chamberlain’s medical expert witness frankly stated that the disability which Schoonover was experiencing at the time of the medical examination was as a result of the hernia. Under our interpretation of the statute, the injury is still compensable unless the employer proves that the employe refused to permit corrective sugery upon some unreasonable basis, or that claimant-employe acted in some arbitrary, capricious or fraudlent manner in connection therewith. The record in this case does not indicate any such action by Schoonover. The record supports a conclusion that two physicians administering to Schoonover have agreed that corrective surgery for the hernia cannot be performed so long as the portal cirrhosis exists in the condition they found it. The
We therefore
„ Order
And Now this 21st day of April 1975, the petition to terminate filed by the Chamberlain Manufacturing Corporation is dismissed and Chamberlain Manufacturing Corporation is directed to pay George Schoonover compensation for total disability at the rate of $94 per week beginning December 14, 1972 and continuing indefinitely thereafter. Deferred payments of compensation shall bear interest at the rate of 10% per annum from the due date thereof.
. No description of a shell is found anywhere in the record.