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April 15, 1954



George Jerko, Indiana, Carl A. Belin, Clearfield, for appellant.

G. W. Musser, Indiana, Frank G. Smith, Smith, Maine, Whitsett & Lee, Clearfield, for appellee.

Before Rhodes, P. J., and Hirt, Ross, Gunther, Wright, Woodside and Ervin, JJ.

Author: Hirt

[ 175 Pa. Super. Page 309]


Matthew Zbieg, a loader in a coal mine, suffered an injury from accident on August 17, 1950, in the course of his employment with the defendant. Thereupon an open agreement was entered into with him by the employer under which compensation for total disability was paid for the period ending August 31, 1951, amounting in all to $1,328.53. Subsequently, the defendant, in the belief that the disability of the injured employee had ceased, tendered $53.61 in full of compensation payments to September 15, 1951, and requested a final receipt. The tender was not accepted and Zbieg refused to sign the receipt. Thereupon the defendant petitioned for termination of the agreement, as of that date, under the second paragraph of § 413 of the Act of June 21, 1939, P.L. 566, 77 P.S. § 1513. The Board, in affirming the Referee with some modification, terminated the agreement and the lower court affirmed the order. In this appeal Zbieg contends that he is still disabled and therefore entitled to further

[ 175 Pa. Super. Page 310]

    compensation. We are unable to find any merit in this appeal.

The compensation agreement recites that claimant suffered a 'fracture involving distal shaft of right fibula just above ankle' when his foot slipped and a conveyor pan struck his leg. Two medical witnesses were called by the defendant in support of the petition to terminate. Dr. W. A. Hill testified that following the accident he reduced what he found to be 'a simple fracture of the right fibula, about three inches above the ankle.' This was the sole injury found by Dr. Hill and in his opinion appellant should have been able to return to work after ten or twelve weeks or about December 1, 1950. But appellant continued to complain of disabling pain in the right foot below the site of the fracture, when he walked. X-ray examination failed to show anything wrong with the foot but Dr. Hill continued to treat him over a period of a year, and two or three times a week gave the foot 'physiotherapy, short wave and diathermy' treatments. Compensation was paid during the period. Dr. Hill 'became convinced that there was no physical reason why he shouldn't go to work' but finally, in fairness to him, referred him to Dr. Frank A. Lorenzo a well-qualified specialist in traumatic surgery.

Dr. Lorenzo examined claimant on August 16, 1951. From an X-ray examination which he had ordered he testified 'that the fibular fracture of the right leg had healed completely in good position,' with 'Callous formation satisfactory for weight bearing.' From his examination, in the light of the history of the case as to which there was no dispute, Dr. Lorenzo concluded: 'My examination revealed that extension lateral motion, rotation, adduction and abduction of the right ankle joint was normal. Manipulation did not produce any localized pain in the area of the old fracture. He complains of pain in the right metatarsal region.

[ 175 Pa. Super. Page 311]

X-ray examination reveals that the fibular fracture that he sustained in August, 1950, is completely healed and there is no reason why he should not have returned to his regular work as a coal loader many months ago.' Based on these conclusions, the witness testified: 'It is my opinion that this patient is definitely a neurotic and I am attempting to treat him from that standpoint. * * * he has no swelling and no pathological evidence that there is anything that should cause him pain, and I feel he just simply doesn't want to work.' His treatment of appellant ended on September 14, 1951.

At an adjourned hearing before the Referee, Dr. L. L. Hobbs, chief surgeon of the Elk County General Hospital, was called on behalf of the claimant. He made an examination of appellant on October 29, 1951 and, based on X-ray reports, stated: 'He is a cripple. He can't use that right foot effectively.' And to the question: 'To what is that pain due?' he said: 'Well the right fibula is bent to the left against the right tibia, and the fracture was never healed, and I believe nerve tissue is impinged on by the bent fibula, as near as I can tell you.' Based on his examination and appellant's complaint of 'pain on flexing of the foot and on hyperextension' this witness concluded that he was still disabled from the accident and estimated the degree of disability at '30% permanent total'. Dr. Hobbs recommended that Zbieg be sent to Dr. ...

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