Appeal, No. 217, Oct. T., 1957, from judgment of Court of Common Pleas No. 1 of Philadelphia County, Sept. T., 1954, No. 8148, in case of Albino Spina v. Gahagan Construction Corp. et al. Judgment vacated.
F. C. Fiechter, Jr., with him Freeman, Fox & Fiechter, for appellant.
Thomas F. Edwards, John B. Hannum, 3rd, and John F. Kenney, for appellees.
Before Rhodes, P.j., Hirt, Gunther, Wright, Woodside, Ervin, and Watkins, JJ.
[ 184 Pa. Super. Page 421]
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".*fn1 Claimant's testimony
[ 184 Pa. Super. Page 422]
was that "I fell on my back", and that both his right leg and his lower back were injured. The injury to the leg was so severe that circulation was jeopardized, and it was necessary (the next day) to amputate the leg at mid thigh. The medical witnesses all agreed that Spina's lower back was involved in the original injury, and that he is now totally disabled. His chief complaint is pain in the lower back, which pain did not exist prior to the accident, but is now daily and constant. It is aggravated by walking and flexion of the spine. There is evidence of spasm of the lumbar musculature with segmental restriction and generalized tenderness, particularly over the sacroiliac joint. The employer's contention rests primarily upon the following testimony by the impartial medical expert on cross-examination: "A. I have been thinking of your question prior to your asking it. It is again a difficult situation but my feeling, the type of problem in relation to his back, if that was the sole problem, I would give him a total disability of approximately fifteen percent. Q. You mean a partial disability of fifteen percent. A. Yes."
Coming now to the procedural situation, Referee Sheldrake originally made an award for the loss of the right leg.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
[ 184 Pa. Super. Page 423]
concluded that Spina should receive compensation for the loss of the right leg and for total disability,*fn2 "said compensation to run concurrently". Upon the employer's appeal, the Board found as a fact "that the claimant has the loss by amputation of the right leg, and also that the injury of March 16, 1953, aggravated the pre-existing condition of claimant's arthritis so that claimant is now totally disabled". The Board accordingly affirmed the amended award of the Referee. Upon the employer's appeal to the court of common pleas, the award by the Board was "reversed", and an award was entered in the form of a judgment covering compensation for 215 weeks for ...