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MOHLER v. COOK ET AL. (04/15/65)

decided: April 15, 1965.

MOHLER
v.
COOK ET AL., APPELLANTS



Appeal from order of Court of Common Pleas of Franklin County, Sept. T., 1964, No. 394, in case of Ray Mohler v. H. Eber Cook et al.

COUNSEL

George S. Black, for appellants.

Rudolf M. Wertime, for appellee.

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

Author: Wright

[ 205 Pa. Super. Page 234]

This is a workmen's compensation case. The employer and his insurance carrier have appealed from an order of the Court of Common Pleas of Franklin County which reversed a decision of the Workmen's Compensation Board and reinstated an award by the Referee.

The record discloses that, on August 2, 1961, claimant was employed as a mason in the construction of a potato cellar. In attempting to pick up a concrete lintel, he experienced a sharp back pain. "A. I bent over. I was in a twisted position and I went to pick it up . . . Something struck me across the back. I had to let go of it. Q. Can you describe what type of thing hit you in the back? A. Just a sharp pain like". The next day claimant consulted Dr. Rahauser, who diagnosed the condition as a back strain. On August 6, 1961, claimant returned to work. On December 18, 1961, while employed on another masonry job, claimant again experienced a sharp pain in his back. "A. I got it in the back; it was about the same as it was the time before". On December 21, 1961, claimant consulted Dr. Corbett who referred him to Dr. Richards. From December 26, 1961, until January 8, 1962, claimant was a patient in the Chambersburg Hospital, where he was in traction and underwent back manipulation. Claimant has worked without interruption since February 5, 1962. The Referee awarded compensation from December 22, 1961, to February 6, 1962, plus medical and hospital expenses. The Board reversed the Referee on the ground that claimant's disability "did not occur as a result of an accident".

[ 205 Pa. Super. Page 235]

The only medical witness for claimant was Dr. Richards, who testified as to his initial impression that claimant had an acute midline disc herniation in the lower back. A myelogram was performed which was essentially normal, and no surgical intervention was indicated. On direct examination the doctor testified as follows (italics supplied): "Q. Well, from what the patient told you, is it possible the pain he had in the back until the time you treated him came from the incident of August, 1961? . . . A. On the basis of the patient's history, he stated that his original injury was when lifting a piece of concrete which could have certainly produced the pain in the lower back. He stated that he had not recovered from this completely at the time of his second injury when he twisted getting out of the truck. I believe that this sequence of events certainly could be the cause for his continual pain in the back as of the time of my examination in December". The doctor further testified that x-rays of claimant's back disclosed a spondylolisthesis, which is a congenital defect or deformity. When questioned as to whether claimant's pain was due to this pre-existing condition or to the incident at work, the doctor stated: "I could not be positive".

Where the Board has found against the party having the burden of proof, the question on appeal is whether there has been a capricious disregard of competent evidence: Verna v. Stabler, 204 Pa. Superior Ct. 87, 203 A.2d 578. The Referee is only the agent of the Board and the lower court does not have power to set aside the Board's findings and reinstate prior findings by the Referee: Krasznay v. Milton Ross Metals, 204 Pa. Superior Ct. 94, 203 A.2d 393. The words of Judge Watkins in Ferlazzo v. Harbison-Walker Refractories Co., 200 Pa. Superior Ct. 390, 189 A.2d 189, are here appropriate: "The court below was under a misapprehension as to the scope of judicial

[ 205 Pa. Super. Page 236]

    review. 'When a claim goes to the courts the appeal is not from the findings of the referee, but from the findings and conclusions of the board' . . . The board is the final arbiter of facts, the referee is only an agent of the board and the board may reject, change or adopt the findings of the referee . . . Here, when the board substituted its own findings for those of the referee, his findings disappear from the case. The court below was clearly in error when it determined that 'the prevailing party is considered to be the claimant, with his favorable award by the referee'. The evidence must be reviewed in the ...


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