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ZILEK v. C. C. COAL COMPANY. (06/11/58)

June 11, 1958

ZILEK, APPELLANT,
v.
C. C. COAL COMPANY.



Appeal, No. 58, April T., 1958, from order of County Court of Allegheny County, No. A 1392 of 1957, in case of Mike Zilek v. C. C. Coal Company. Order affirmed.

COUNSEL

William J. Krzton, for appellant.

Irwin M. Ringold, for appellee.

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

Author: Watkins

[ 186 Pa. Super. Page 629]

OPINION BY WATKINS, J.

This is an appeal in a workmen's compensation case. On March 20, 1950 a mine roof caved in and struck the legs of Mike Zilek, the claimant, while in the course of his employment by C. C. Coal Company, the defendant appellee, causing him to fall backwards, striking his head over the left occipital region so that he suffered injury to the left inner ear, with loss of hearing and dizziness. He was paid compensation for total disability until May 28, 1951 under an open compensation agreement. Beginning May 29, 1951 by stipulation of the parties, the agreement was modified to 50% partial disability which was paid up to December 26, 1955, the end of the 300-week period allowed for partial disability.

A petition for reinstatement was filed on March 29, 1956 alleging that his condition is worse and that he is now totally disabled. The company appellee filed an answer denying these allegations. The referee dismissed the petition and found as a fact that the disability remains partial so that the claimant has already been paid all legal compensation due. The board agreed with the referee and the court below affirmed the board.

The issue here, where the decision of the board is against the party having the burden of proof, is whether

[ 186 Pa. Super. Page 630]

    the board's findings of fact are consistent with each other and with its conclusions of law and its order, and can be sustained without capricious disregard of the competent evidence. Silvers v. Philco Corp., 175 Pa. Superior Ct. 246, 103 A.2d 286 (1954).

The court below carefully reviewed the testimony as follows: "True, the claimant did call Dr. J. P. Grunnagle, who testified (P. 6 et seq.) that after examination of the claimant and study of the medical record there was found an injury to the left cochlia and semicircular canals; x-rays of the skull were negative, so was an electro- encephalogram. Treatment was given claimant to the left eye and left ear, examinations in January 1951 revealed substantially the same findings. This doctor saw the claimant for the third times, September 9, 1952, when again there were complaints of dizziness and deafness of the left ear, and at that time this claimant's physician declares the deafness and dizziness probably resulted from a skull fracture, suggested x-rays to rule out the possibility of a tumor, but no such x-rays of the skull were taken. This doctor made his last examination of the claimant, March 6, 1956, confirmed the findings as before, declared some light work of a general character could be done by the claimant.

"Defendant's medical expert, Dr. I. M. Pochapin, examined the claimant on October 26, 1956, gives it as his expert opinion (PP. 47, 56) that while there is total loss of hearing in the left ear, and anxiety, said claimant could perform tasks of a light nature and is not totally disabled. Defendant's private investigator, L. E. Meyer, testified (P. 59) to his observation of the claimant doing some work, October 27, 1956, helping to load a small truck with sheets or ...


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