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SIGISMONDI v. DEVINCENTIS CONSTRUCTION COMPANY ET AL. (11/12/64)

decided: November 12, 1964.

SIGISMONDI
v.
DEVINCENTIS CONSTRUCTION COMPANY ET AL., APPELLANTS



Appeal from order of Court of Common Pleas No. 2 of Philadelphia County, Dec. T., 1963, No. 1952, in case of Nicholas Sigismondi v. DeVincentis Construction Company et al.

COUNSEL

W. Glenn George, for appellants.

Gerald Gornish, with him Leonard Zack, for appellee.

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

Author: Montgomery

[ 204 Pa. Super. Page 370]

In this workmen's compensation case the referee granted claimant's petition to set aside a final receipt

[ 204 Pa. Super. Page 371]

    and made an award on a finding of fifteen per cent partial disability. The referee's award was reversed by the board. The Court of Common Pleas subsequently reversed the order of the board and ordered the reinstatement of the award of the referee.

On June 7, 1960, Nicholas Sigismondi, appellee-claimant, a stone pointer by occupation, at the age of 63 sustained a linear fracture of the fifth metatarsal bone of his left foot. For this injury, under a compensation agreement, he received compensation of $1,123.21 from June 20, 1960, to December 22, 1960. A final settlement receipt was signed on January 10, 1961. Appellee's petition to set aside the final receipt was dated January 7, 1963, and a hearing was held before the referee on February 13, 1963.

The claimant had the burden of proof to set aside the final receipt in accordance with the provisions of the Act of February 28, 1956, P. L. (1955) 1120, § 1, 77 P.S. § 1001.

In attempting to meet his burden of proving that the injury to his left foot had not healed appellee heavily relied on testimony that is frequently referred to as "subjective" in nature, and he also relied on expert medical opinion based on that testimony. Subjective injuries, pain, and suffering are those which depend on the accuracy of an injured person's complaints to his examining physician rather than on objective findings such as X rays or involuntary muscle spasms. Wade v. Lane, 189 F. Supp. 661 (D.C. 1960). In this respect appellee testified that he had dull pains in his leg at all times; that a couple of times he has had sharp pains, at which times he could not walk, the latest time being three weeks prior to the hearing before the referee; that he no longer is able to work on scaffolds or stepladders nor would he dare to risk working with both hands in high places because of his weak leg.

[ 204 Pa. Super. Page 372]

Appellee's wife testified that her husband complained a great deal about his leg and occasionally of sharp pains in it; that on a couple of occasions, prior to Thanksgiving and in December, 1962, his ankle was swollen, he complained of pain, and he could not ...


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