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LITMAN v. LITMAN (01/21/58)

January 21, 1958

LITMAN
v.
LITMAN, APPELLANT.



Appeal, No. 294, Oct. T., 1957, from order of Court of Common Pleas No. 2 of Philadelphia County, June T., 1956, No. 3264, in case of Edward I. Litman v. Sarah Litman. Order affirmed.

COUNSEL

Henry T. Reath, with him John M. Ross and Duane, Morris & Heckscher, for appellant.

David L. Ullman, with him Allen J. Levin, for appellee.

Before Rhodes, P.j., Hirt, Gunther, Wright, Woodside, Ervin, and Watkins, JJ.

Author: Gunther

[ 185 Pa. Super. Page 71]

OPINION BY GUNTHER, J.

This is a workmen's compensation case. Claimant was a manager and bartender in defendant's taproom where he worked regularly without losing any time. On February 27, 1950, in the absence of a porter, claimant went to the refrigerator to tap a keg of beer, which ordinarily takes five to ten minutes to perform. While tapping the beer a rod broke and claimant, in attempting to repair the broken rod and then installing a new one, remained in the refrigerator for thirty minutes in an apron and shirt sleeves. This was the first time in fourteen years that this had ever happened.

The next day claimant felt a cold in his chest. He suffered from an acute infection causing him to cough and spit up yellow sputum. Two weeks after the incident, he was taken to the hospital, paralyzed, where he remained from March 14th until August 16th. On August 18th he was sent to the Bellevue Medical Center of New York University in New York City where he remained until a short time before Christmas. He has been at home ever since, paralyzed and with a constant attendant. He is totally disabled from the chest cage down, suffering from transverse myelitis.

The referee, who had heard the case, found, as a fact, that on February 27, 1950, while in the course of his employment, the claimant was attempting to tap a keg in the refrigerator where he found a defective rod, and while removing this rod and inserting a new one, he was required to spend one-half hour in the refrigerator where the temperature was 40 degrees Fahrenheit. He further found that this exposure was the cause of the infection and that the infection resulted in transverse myelitis rendering claimant totally disabled.

[ 185 Pa. Super. Page 72]

The award of the referee was affirmed by the board and the appeal to the Court of Common Pleas of Philadelphia County was dismissed. From the action of the court below, this appeal was taken.

Defendant here urges that there was no competent medical testimony to support the finding of fact of the compensation authorities to the effect that a casual relationship existed between claimant's transverse myelitis and his exposure to 40 degree temperature, and that the facts as found by the referee did not constitute an accident. The other issue, that no personal injury was sustained by claimant, was not raised before the board and will not now be considered for the first time on appeal.

The board is the ultimate arbiter of the facts and its findings are binding on appeal if supported by competent and substantial evidence. Greap v. Oberdorff, 178 Pa. Superior Ct. 153, 157, 113 A.2d 339; Messikomer v. Baldwin Locomotive Works, 178 Pa. Superior Ct. 537, 543, 115 A.2d 853; Allen Unemployment Compensation Case, 174 Pa. Superior Ct. 514, 102 A.2d 195. Did the referee and the board, as fact finding bodies, base their findings on competent medical testimony when they believed that the disease was due to a respiratory infection, having first eliminated other sources of the disease? It is our duty to view the evidence in the light most favorable to the party in whose favor the board has found, giving that party the benefit of every inference which can be ...


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