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VERNA v. STABLER (09/17/64)

decided: September 17, 1964.

VERNA, APPELLANT,
v.
STABLER



Appeal from order of Court of Common Pleas No. 4 of Philadelphia County, Sept. T., 1962, No. 20, in case of Jasper D. Verna v. Lou Stabler et al.

COUNSEL

Alexander F. Barbieri, with him Barbieri and Sheer, for appellant.

Bernard J. Avellino, with him Max E. Cohen, for appellees.

Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ. (Rhodes, P. J., absent). Opinion by Wright, J.

Author: Wright

[ 204 Pa. Super. Page 88]

This is a workmen's compensation case. Claimant has appealed from an order of Court of Common Pleas No. 4 of Philadelphia County affirming a decision of the Workmen's Compensation Board which rejected claimant's contention that he was entitled to compensation for the specific loss of a foot under Section 306(c) of The Pennsylvania Workmen's Compensation Act. Act of June 2, 1915, P. L. 736, Section 306(c), 77 P.S. 513.

On September 25, 1957, while employed by Lou Stabler as an electrician, Jasper D. Verna, the claimant, fell from a ladder and sustained injuries to his right knee and right foot. An open agreement was

[ 204 Pa. Super. Page 89]

    executed calling for payment of compensation for total disability. On September 16, 1960, the employer filed a petition for termination alleging that claimant had secured full-time work at a higher wage rate, and stating that compensation had been paid for 141 weeks, ending June 9, 1960, plus medical expenses. In his answer claimant admitted that he had been employed since June 27, 1960 but alleged that he was still suffering disability. After taking testimony at two hearings, the Referee found that "claimant's condition of total disability due to the injuries to his right knee and ankle resolved themselves into the loss of use of his right foot". Compensation was awarded by the Referee for a period of 150 weeks from June 10, 1960. Upon appeal by the employer, the Workmen's Compensation Board reversed the Referee, finding that claimant had not lost the use of his right foot. An award was made for partial disability from June 10, 1960 through June 26, 1960, but no compensation was awarded after the latter date "since the claimant has suffered no loss of earning power". See Scott v. C. E. Powell Coal Co., 402 Pa. 73, 166 A.2d 31. The court below affirmed the decision of the Board.

The record discloses that, following the accident, claimant's right ankle was operated upon and three small pins inserted, two of which have been removed. Dr. Rechtman testified for the employer that, at the time of his examination on April 7, 1959, claimant's ankle joint was well preserved with no degenerative or arthritic changes and that, after a short period of exercise, claimant would be able to return to work. Dr. John Di Silvestro testified that, on June 14, 1960, in his capacity as a medical examiner for the Yellow Cab Company, claimant's present employer, he examined the claimant and found no disability. Claimant has been working full time as a maintenance electrician without either incident or complaint. His wage rate is higher

[ 204 Pa. Super. Page 90]

    than that before the accident. In his duties he drives a truck throughout the City of Philadelphia to the various locations of the Yellow Cab Company where electrical repair and maintenance may be needed. He is the only electrician employed by the company to do this work. He walks without a cane or other appliance. He is required to stand on his feet and sometimes climbs ladders. Dr. Mattei nevertheless testified for the claimant that, as a result of traumatic arthritis in the right ankle joint, claimant had lost the use of his foot for all practical intents and purposes. It is our view that the Board properly refused to adopt this conclusion.

Appellant first contends that the Board erred in ruling against him as a matter of law. This argument is based on the following excerpt from the opinion of the Board: "Assuming that all the medical testimony favorable to the claimant is true, we must find as a fact that the claimant has not lost the use of the right foot for all intents and purposes". The Board was in effect saying that, even if Dr. Mattei's diagnosis of claimant's anatomical condition was correct, it could not, under all the evidence, accept his opinion that claimant had lost the use of his foot. Recognizing that the record contained conflicting medical testimony, the Board stated: "There is a great deal of non-medical testimony in the record which indicates that the claimant walks without the use of supports of any type; that in his employment he is able to drive a truck across and through various parts of the City of Philadelphia; that his job requires him to stand on a ladder, and that he is generally able to get around without revealing to others that he is suffering any disability of ...


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