Appeal, No. 362, Oct. T., 1958, from judgment of Court of Common Pleas No. 3 of Philadelphia County, Dec. T., 1957, No. 2318, in case of William Cunningham v. Alex Guerrina & Sons et al. Judgment affirmed.
Frederick L. Fuges, with him Joseph X. Heincer, Edmund B. Spaeth, Jr., and MacCoy, Evans & Lewis, for appellant.
Samuel D. Engelbach, with him Milton S. Leidner, for appellee.
Before Rhodes, P.j., Gunther, Wright, Woodside, Ervin, and Watkins, JJ. (hirt, J., absent).
[ 188 Pa. Super. Page 290]
This is a Workmen's Compensation case involving the extent of disability suffered by the appellee, William Cunningham, as a result of an accident on December 15, 1952, in the course of his employment by the appellant, Alex Guerrina & Sons. He suffered a fracture of the os calcis of the right foot as a result of a fall from a scaffold. On January 6, 1953, the parties entered into an open compensation agreement based on total disability. Weekly payments were made under this agreement until January 24, 1955. From that date the appellant began making payments based on 25% disability and on May 13, 1955 filed a petition for modification of the agreement.
The referee found that the disability had changed from total to 50% partial permanent disability. The Workmen's Compensation Board, on appeal, reversed the referee, dismissed the petition and directed payments to be made on the basis of total disability within the limitation of the act. This decision was affirmed by the Court of Common Pleas No. 3 of Philadelphia County and this appeal followed.
The court below determined that the appellant failed to sustain its burden to show a change in the disability status created by the agreement; and that there was sufficient, competent evidence to support the board's finding of total disability.
The record shows that as a result of the accident the employee suffered a fracture of the os calcis of the right foot. The foot was operated on by Dr. Henry S. Wieder, Jr., the appellants' surgeon, in 1953 and 1954 in an effort to fuse the ankle joint. The operations were unsuccessful in that they did not bring about the result anticipated so that his condition precluded his performance of any work that would require standing, carrying or walking.
[ 188 Pa. Super. Page 291]
The appellee is 52 years of age and the only work known to him has been heavy manual labor. He had only very limited education and was entirely unsuited for work of any clerical nature and his disability ruled out the light jobs usually suggested in compensation cases because of his inability to stand, carry or walk without pain. The record is silent as to any suggestion by the appellant as to the availability of any such work for the appellee.
Dr. Henry S. Wieder, Jr., the appellants' medical witness testified that in his opinion there was a 25% permanent partial disability. His opinion was based solely on an estimate of his anatomical disability. De. Gilbert Fineman, the appellee's medical witness agreed with this anatomical estimate but testified that, taking into consideration all other factors ...