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KISH v. T.F. STEELE COAL COMPANY ET AL. (01/21/58)

January 21, 1958

KISH
v.
T.F. STEELE COAL COMPANY ET AL., APPELLANTS.



Appeal, No. 270, Oct. T., 1957, from judgment of Court of Common Pleas of Schuylkill County, March T., 1957, No. 346, in case of Lewis Kish v. T.F. Steele Coal Company et al. Judgment affirmed.

COUNSEL

Penrose Hertzler, for appellants.

Thomas L. Kennedy, Jr., for appellee.

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

Author: Ervin

[ 185 Pa. Super. Page 258]

OPINION BY ERVIN, J.

The only issue in this workmen's compensation case is whether claimant's partial disability has changed to total disability.

On April 11, 1949 the claimant sustained an accidental injury when he was struck on the neck by a falling prop. The claimant continued at his regular work until August 18, 1949. He was paid compensation for total disability under a compensation agreement at the maximum rate of $20.00 per week for 41 weeks from August 26, 1949 to June 8, 1950 inclusive. The defendant filed a petition to terminate in which it alleged that all disability as a result of the accident had terminated on June 8, 1950. On August 22, 1950, after hearing, the referee awarded compensation on the

[ 185 Pa. Super. Page 259]

    basis of a partial disability of 60% at the rate of $17.00 per week from June 9, 1950. The claimant has received compensation for a total period of 300 weeks in the amount of $5,299.08. On May 25, 1955 the claimant filed a petition alleging that "I am now totally and permanently disabled" and asked that the award of the referee be modified accordingly. On September 27, 1956 the referee found that the claimant was totally disabled on May 27, 1955 and awarded compensation for total disability from that date. The board and the court below subsequently affirmed the referee's decision. The defendants appealed.

The board having found in favor of the claimant, the evidence must be viewed in the light most favorable to him and he must be given the benefit of every inference reasonably deducible therefrom: Santillo v. Pittsburgh Railways Co., 181 Pa. Superior Ct. 266, 124 A.2d 657.

The only question is whether the board's finding is supported by substantial and competent evidence. Carl v. American Window Glass Co., 152 Pa. Superior Ct. 475, 33 A.2d 93. Dr. Leonard Bush, an orthopedic surgeon in charge of the Department of Orthopedic Surgery at the George F. Geisinger Memorial Hospital in Danville, Pennsylvania, who had seen claimant a number of times from September 17, 1949 to May 28, 1952, testified that, in his opinion, "the man is presently totally disabled." In arriving at this conclusion the doctor took into consideration that claimant had worked in the mines for a period of 42 years without any trouble with his neck and that after being struck on the neck by the beam he was unable to raise his hands. The ...


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