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MARSHALL v. ALTOONA ET AL. (09/15/66)

decided: September 15, 1966.

MARSHALL
v.
ALTOONA ET AL., APPELLANTS



Appeal from judgment of Court of Common Pleas of Blair County, March T., 1960, No. 155, in case of John F. Marshall v. City of Altoona et al.

COUNSEL

Robert Haberstroh, for appellants.

Martin Goodman, with him Goodman & Notopoulos, for appellee.

Ervin, P. J., Wright, Watkins, Montgomery, Jacobs, Hoffman, and Spaulding, JJ. Opinion by Spaulding, J.

Author: Spaulding

[ 208 Pa. Super. Page 467]

On October 23, 1954, the appellee, John F. Marshall, a police sergeant for the City of Altoona, sustained a severe gunshot wound in the course of his employment, resulting in the total loss of the use of his right arm and in damage to his entire shoulder area. He has not been employed since that time.

On January 27, 1955, appellee and the employer appellant entered into an open agreement for total disability. The agreement was approved by the Workmen's Compensation Board and payments were made accordingly. On February 8, 1957, appellant filed a petition for modification alleging that appellee's disability was limited to the industrial loss of his right arm. Supporting testimony was based on examinations made on appellant's behalf by Dr. John C. Ewing, an orthopedist, in July 1956 and July 1957.

At a referee's hearing, Dr. Ewing testified he believed appellee's disability was limited to his right arm. He admitted the existence of damage to tissues, muscles, circulation, and nerves in the shoulder area.

At a later hearing, appellee testified that his entire nervous system seemed to be affected, that he could not master anything with his left hand, and he was unable to perform any work. The referee found continuing total disability and dismissed the petition for modification.

On appeal, the board reversed the referee and sustained appellant's petition. The board, in turn, was reversed by the court below which remitted the record for further hearing. No additional testimony having been elicited, the referee again submitted findings of total disability and dismissed the petition.

Thereafter, the board directed the referee to appoint an impartial medical expert to examine the appellee. Dr. George A. Berkheimer, an orthopedist and neurosurgeon, was selected. He testified that appellee

[ 208 Pa. Super. Page 468]

    had lost "the entire use of the right upper extremity and this includes the . . . shoulder girdle." He also stated that the shoulder girdle, which involves the scapula, the humerus, the surrounding muscles and the outer end of the clavicle, could be considered a complete functional loss. He ...


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