Appeal, No. 205, Oct. T., 1952, from judgment of Court of Common Pleas No. 5 of Philadelphia County, March T., 1951, No. 3414, in case of Lemuel Patterson v. Phila. Dairy Products Co. and Maryland Casualty Insurance Co. Judgment reversed. Appeal by defendants from award by Workmen's Compensation Board. Appeal sustained and order entered dismissing claim, opinion by ALESSANDRONI, J. Plaintiff appealed.
David L. Ullman, Philadelphia, for appellant.
Louis Wagner, Philadelphia, for appellees.
Before Rhodes, P.j., Hirt, Ross, Wright, Woodside and Ervin, JJ. (gunther, J., absent).
[ 177 Pa. Super. Page 196]
This is a workmen's compensation case wherein the claimant seeks compensation for disability which he alleges is the result of an accident sustained in the course of his employment. The compensation authorities found in favor of claimant and made an award. The employer and its insurance carrier appealed to the Court of Common Pleas No. 5 of Philadelphia County which court sustained exceptions to the decision of the Workmen's Compensation Board, set aside the findings of the the findings of the Board and dismissed the claim. This appeal by the claimant followed.
[ 177 Pa. Super. Page 197]
Claimant was employed by the Philadelphia Dairy Products Co. as a truck driver. Part of his duties were to help load and unload the truck. In the afternoon of December 24, 1948 claimant and a helper were engaged in unloading pasteboard cartons of milk bottles. Claimant was on top of a pile of cartons and his helper was in the truck sliding the cartons down a conveyor to the claimant who picked them up from the conveyor and placed them on the pile. As claimant reached down to pick up a carton of bottles his legs went from under him and he fell to his knees. On several occasions prior to December 24, 1948 claimant had been disabled by accidents resulting in injuries to his back. On this occasion claimant advised the plant manager that he had hurt his back and requested and received permission to go to the Osteopathic Hospital for treatment. After returning to the plant he did not engage in any loading or unloading work. Claimant worked the following day but only drove the truck while his son helped him by doing all the loading and unloading work. From Christmas Day until he went to the hospital, claimant was confined to his bed. After an examination on December 31, 1948 by Dr. James M. Eaton, a diplomate in orthopedic surgery, claimant was admitted to the Osteopathic Hospital of Philadelphia on January 1, 1949 where he had x-ray studies and an air myelogram which showed a protruding disc at the level of the fourth lumbar vertebra on the right side. Surgery was recommended for the relief of this source of nerve root irritation. On January 7, 1949, surgery was performed, at which time the disc at the level of the fourth lumbar vertebra was removed. A disc at the level of the fifth lumbar vertebra was found to be degenerate but not protruding, so both discs were removed, and the nucleus pulposus was evacuated. Following the operation for the removal
[ 177 Pa. Super. Page 198]
of the discs a fusion of the two lower lumbar vertebrae to the sacrum was performed. Claimant made an uneventful recovery and was discharged from the hospital on January 21, 1949. He returned to work for the employer on April 14, 1949 as a guard, a job which did not require him to do any bending or lifting and he is presently so employed.
The Board was of the opinion that claimant sustained an accident which aggravated a pre-existing condition. The material findings of fact made by the Board are as follows: " Second: The Workmen's Compensation Board finds as a fact that on December 24, 1949 , while unloading cartons of bottles, claim ant fell on both knees, when his left leg became straddled. Ninth: The Workmen's Compensation Board finds as a fact that claimant had a pre-existing back ailment which had disabled him at times, the last occasion being from August 27, 1948 to September 10, 1948. Tenth: The Workmen's Compensation Board finds as a fact that claimant's fall on December 24, 1948, aggravated his pre-existing condition, causing a rupture of discs L4 and L5, rendering him totally disabled."
The court below reversed the award on the ground that the finding of the Board that claimant's pre-existing back ailment was aggravated by the fall of December 24, 1948 was without ...