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ANTHONY v. LEE COAL CO. ET AL. (01/12/51)

January 12, 1951

ANTHONY
v.
LEE COAL CO. ET AL.



COUNSEL

Thomas D. Stauffer, Kittanning, Karl E. Weise, Paul Kern Hirsch and Hirsch & Weise, all of Pittsburgh, for appellant.

George Jerko, Indiana, for appellee.

Before Hirt, Acting P. J., and Reno, Dithrich, Ross, and Arnold, JJ.

Author: Hirt

[ 168 Pa. Super. Page 398]

HIRT, Judge.

On May 17, 1948 claimant, in the course of his employment was operating a cable drawn shuttle car loaded with coal, in defendant's mine. He was in the act of taking hold of the loose cable when suddenly the power reel started to take up the slack. The moving cable caught his left foot and threw him to the floor of the mine. The circumstances of the accident are not disputed and the testimony supports the finding that, as a result of it, claimant's left knee and hip were injured. Claimant testified that he consulted Dr. John S. Wilson the next day and told him of the knee and the hip injuries and that he was treated for both injuries. Dr. Wilson when called as a witness could not remember the hip injury but a report signed by him on November 9, 1948 recites that he had treated claimant for 'injuries to left knee and hip'. The testimony

[ 168 Pa. Super. Page 399]

    also supports the additional finding that 'The claimant became totally disabled immediately as a result of his accident of May 17, 1948, and did not return to his regular work until May 24, 1948' and that he continued to be so employed until September 2, 1948.

The serious dispute is whether there is support for further findings to the effect that claimant's total disability from the accident recurred on September 2, 1948 and continued until November 22, 1948; and that it then resolved itself into 'partial disability reflected in a loss of earnings of $32.75 per week, which partial disability still continues'. On these findings an award was made for total disability at $20 per week until November 22, 1948, and at the rate of $17 per week for partial disability thereafter. On appeal judgment was entered on the award by the lower court.

Claimant testified that on September 2, 1948, he had to quit work because of pain in his hip. He then reported his condition to his former superintendent and on his advice had an x-ray examination. Dr. I. N. Boyer who ordered the examination at the local hospital read the x-ray plates and agreed with the technician's report that 'The lower spine, pelvis, including both hip bones reveals no pathology'. Dr. Boyer did not examine claimant physically, and there is no competent medical evidence of a causal connection between the disability from the accident, following September 2, 1948, and the pain in the hip. Claimant was tripped by the moving cable so violently that his left foot touched the ceiling of the mine. The force of his fall well might have caused serious bodily injury in spite of the fact that there was no external evidence of injury other than swelling of the knee. Claimant's good faith in asserting a recurrence of disability from the accident on September 2, 1948, is not questioned. He testified that he never had had any trouble with his hip before the accident and in the latter part of 1948 he told Dr.

[ 168 Pa. Super. Page 400]

Wilson that he was unable to work because of pain in the hip. But nevertheless there is insufficient competent evidence in this record to warrant the conclusion that claimant's disability after September 2, 1948 should be regarded as a recurrence chargeable to the accident. The pain in his hip might have resulted from any one of a number of causes other than the accident.

In the record there is testimony of H. L. Cleeland, a licensed chiropractor, who in the course of treating claimant, subsequent to August 21, 1948, ordered an x-ray examination of claimant's hip. Dr. Cleeland was found to be qualified to read the x-ray plates and he testified that they showed evidence of 'an irritation to the left sacroiliac articulation' and an 'old standing injury' predating May 17, 1948, by 'years previous to that'. If claimant's disability beginning in September 1948 is attributable to the accident of May 17, 1948, either ...


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