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EVERITT v. BAKER REFRIGERATOR COMPANY. (04/12/62)

April 12, 1962

EVERITT, APPELLANT,
v.
BAKER REFRIGERATOR COMPANY.



Appeal, No. 366, Oct. T., 1961, from order of Court of Common Pleas No. 5 of Philadelphia County, March T., 1961, No. 1978, in case of Mary J. Everitt, widow of William M. Everitt v. Baker Refrigerator Company et al. Order affirmed.

COUNSEL

Lester L. Dolfman, for claimant, appellant.

Gerald J. Haas, Associate Counsel, with him E.S. Lawhorne, Associate Counsel, R.D. Holahan, Counsel, State Workmen's Insurance Fund, and Marshall Seidman, Deputy Attorney General, and David Stahl, Attorney General, for State Workmen's Insurance Fund, appellee.

Before Rhodes, P.j., Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ.

Author: Wright

[ 197 Pa. Super. Page 612]

OPINION BY WRIGHT, J.

This is a workmen's compensation case. We are here concerned with an appeal by the widow claimant

[ 197 Pa. Super. Page 613]

    from an order of Court of Common Pleas No. 5 of Philadelphia County, affirming a decision of the Workmen's Compensation Board wherein the claim petition was dismissed. It will be necessary to set forth the factual and procedural history in some detail.

On September 29, 1954, William M. Everitt. claimant's husband, sustained an accidental injury while in the employ of Baker Refrigerator Company, Philadelphia, Pennsylvania. A compensation agreement was executed on October 20, 1954, containing the following description of the accident and injury: "Claimant was working at large section of refrigerator when two other employes were moving another; it fell over and caught left foot and ankle fracturing the ankle, also fracturing the cuboid bone in right foot". Compensation was paid under this agreement on the basis of total disability. On August 18, 1955, a supplemental agreement was executed in which it was stipulated that Everitt's disability status had changed to fifty percent partial. Under date of November 29, 1955, a second supplemental agreement was executed in which it was stipulated that Everitt's disability status and changed to twenty-five percent partial. On June 13, 1956, the employer filed a termination petition, in which it was alleged that Everitt's disability had entirely ceased. There was a hearing on this petition on February 13, 1957, at which time Dr. Henry S. Orloff testified for the employer that he had treated Everitt from February 9, 1955, to May 14, 1956, and that Everitt had completely recovered "except his age. He can't recover from his age". The record discloses that, at the time of the accident, Everitt was aged sixty-six years, and had received medical treatment on several occasions for "hardening of the arteries".

Under date of February 27, 1957, the Board appointed Dr. Leopold S. Vaccaro as an impartial expert. At a hearing on July 2, 1958, Dr. Vaccaro testified

[ 197 Pa. Super. Page 614]

    that Everitt had "a serious disturbance of legs and feet to the point of total and permanent disability". Dr. Vaccaro further testified that Everitt had suffered a "nervous shock" at the hearing on February 13, 1957, that he "must have developed a coronary thrombosis, which was soon followed by dyspnea, or shortness of breath, and acute myocardial infarction for which he was hospitalized on February 19, 1957". Dr. Vaccaro expressed the opinion "that the conditions from which he is suffering are the direct result of his accident on September 29, 1954. Had such accident never occurred, he would not have been totally and permanently disabled, and had the hearing of February 13, 1957, not taken place, which was a natural sequela of the accident, he would not have suffered an acute myocardial infarction which in itself also makes him a total and permanent cripple". Under date of July 18, 1858, the Referee found as a fact that ...


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