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HARRISBURG HOUSING AUTHORITY v. WORKMEN'S COMPENSATION APPEAL BOARD AND MCKINLEY HUBBARD (07/24/74)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: July 24, 1974.

HARRISBURG HOUSING AUTHORITY, APPELLANT,
v.
WORKMEN'S COMPENSATION APPEAL BOARD AND MCKINLEY HUBBARD, APPELLEES

Appeal from the Order of the Workmen's Compensation Appeal Board in case of McKinley Hubbard v. Harrisburg Housing Authority, No. A-67122.

COUNSEL

Ronald M. Katzman, with him Goldberg, Evans & Katzman, for appellant.

Lawrence G. Frank, with him Smith B. Gephart and Killian & Gephart, for appellees.

Judges Wilkinson, Jr., Mencer and Rogers, sitting as a panel of three. Opinion by Judge Wilkinson.

Author: Wilkinson

[ 14 Pa. Commw. Page 414]

This is an appeal by the employer from an award of workmen's compensation for total disability. Claimant-appellee was injured as a result of a compensable accident when he fell from a ladder striking his back. The referee found that claimant-appellee "was totally disabled by his accidental injury of January 25, 1971, up to and including the present time." The Workmen's

[ 14 Pa. Commw. Page 415]

Compensation Appeal Board affirmed the referee's determination and this appeal followed.

Our scope of review in this case is limited. As stated by Judge Blatt in Leipziger v. Workmen's Compensation Appeal Board, 12 Pa. Commonwealth Ct. 417, 419, 315 A.2d 883, 885 (1974): "On appeals to this Court in workmen's compensation cases, our scope of review is limited to a determination of whether or not constitutional rights were violated, an error of law was committed, or any necessary finding of fact was unsupported by substantial evidence. (Citation omitted.) And where, as here, the Board has taken no additional evidence, we must rely on the facts as found by the referee if they are supported by sufficient competent evidence." (Citation omitted.) We are also mindful that "it is our duty to examine the record and determine, not whether we would have made the same findings as the authorities, but whether the evidence is such that a reasonable person, acting reasonably, might reach the same conclusion on the facts as did those authorities." Hershey Estates v. Workmen's Compensation Appeal Board, 9 Pa. Commonwealth Ct. 470, 472, 308 A.2d 637, 638 (1973).

In its brief, appellant concedes that the "accident resulted in total disability for a maximum of six months, but contends that there is no competent medical evidence to support a finding that said disability existed for any more than six months as a maximum."*fn1 The issue, therefore, is whether the referee's finding that the total disability is continuing "up to and including the present time" was supported by substantial evidence.

A careful review of the entire record reveals that there was substantial evidence to support a finding that

[ 14 Pa. Commw. Page 416]

    claimant-appellee's disability was of a continuing nature. On August 19, 1971, seven months after the accident, Dr. Goodman, later a witness for the appellant, wrote: "I would consider this man as being totally disabled." The testimony of Dr. Sussman, claimant-appellee's witness, two years after the accident, is crucial: "A. I would concur with the idea that we have, one, a disabled individual who is no longer able to be gainfully employed, at least in the capacity that he had prior to the accident. Number two, we have at present an individual who has the residual of what has been initiated at the time of the accident, plus concurrent medical problems -- Q. Which were not related? A. The summation of which adds to his total disability." Dr. Sussman did not later alter his testimony as appellant claims. When asked if the immediate effect of the sustained trauma would have abated after three months, he responded: "I am inclined to agree with that if the individual did not possess a vulnerable bit of pathology known as osteoarthritic changes of his back. The fact that he had this disease arthritic disease to start with, although it was quiescent at the time of his injury, made him more vulnerable to have his symptomatology, whatever they may be, last for a longer period." Under persistent and skillful cross-examination, Dr. Sussman was asked essentially the same question and responded in the same manner.*fn2 Taken as a whole, Dr. Sussman's testimony supports a finding that the disability was of a continuing nature.

Appellant also raises an argument involving the legal sufficiency of the testimony of Dr. Sussman, claimant-appellee's

[ 14 Pa. Commw. Page 417]

    medical witness. The proper test concerning the testimony of medical experts was clearly set forth in Menarde v. Philadelphia Transportation Company, 376 Pa. 497, 501, 103 A.2d 681, 684 (1954): "[T]he expert has to testify, not that the condition of claimant might have, or even probably did, come from the accident, but that in his professional opinion the result in question came from the cause alleged. A less direct expression of opinion falls below the required standard of proof and does not constitute legally competent evidence." (Citations omitted.) Equivocal expressions of medical opinions such as "could have," Florig v. Sears, Roebuck & Co., 388 Pa. 419, 130 A.2d 445 (1957), Nestor v. George, 354 Pa. 19, 46 A.2d 469 (1946), "highly possible," DiFazio v. J. G. Brill Company, 133 Pa. Superior Ct. 576, 3 A.2d 216 (1938), "probably was," Bonaduce v. Transcontinental Gas Pipe Line Corporation, 190 Pa. Superior Ct. 319, 154 A.2d 298 (1959), and "probably a cause and effect relationship," McMahon v. Young, 442 Pa. 484, 276 A.2d 534 (1971), have been held to be legally insufficient. However, in Hagner v. Alan Wood Steel Company, 210 Pa. Superior Ct. 473, 233 A.2d 923 (1967), the doctor's statement that "I think it certainly accelerated his death" was held to be a legally sufficient expression of professional opinion.

Turning to Dr. Sussman's testimony: "Q. Doctor, do you have an opinion based upon the history given you by Mr. Hubbard and your examinations of Mr. Hubbard and your treatment of Mr. Hubbard as to whether or not his disability today, inability to work, is related to the accident of January 25, 1971? A. There is a relationship, and although he did have osteoarthritis prior to the accident, it was by history in an asymptomatic state. The trauma experienced during his fall precipitated a series of manifestations as exemplified by pain,

[ 14 Pa. Commw. Page 418]

    limitation of motion and disability. Consequently, it is my interpretation that his post-accident disability is related to the trauma received during the accident, and that the osteoarthritis and the bridging that existed prior to that has no direct bearing but made him more vulnerable." The operative phrase is "it is my interpretation." Appellant argues that this does not satisfy the test of Menarde, supra. We disagree. The phrase, "it is my interpretation," does not qualify or modify the testimony so as to render it equivocal, and it appears to be synonymous with the phrase, "I think," which was held to be legally sufficient in Hagner, supra.

Appellant's final argument is that the compensation authorities erroneously included hospital expenses for May and June, 1971 in the award to claimant-appellee. During those months, claimant-appellee was hospitalized for treatment of thrombosis which, in Dr. Sussman's words, had "no connection at all with the accident." We can find no evidence in the record which would support a finding that the hospital expenses for those months were incurred as a result of the accident.

Accordingly, we enter the following

Order

Now, July 24, 1974, it is hereby ordered that judgment be entered on behalf of McKinley Hubbard and against the Harrisburg Housing Authority and/or its insurance carrier whereby they are directed to pay to McKinley Hubbard compensation for total disability at the rate of $60.00 per week, beginning January 25, 1971, and continuing within the meaning and limitations of the Pennsylvania Workmen's Compensation Act, together with interest at the rate of six percent per annum on all deferred amounts of workmen's compensation payable hereunder, with credit to the appellant and/or its insurance carrier for any workmen's compensation

[ 14 Pa. Commw. Page 419]

    already paid. Appellant and/or its insurance carrier are also directed to pay the following bills:

Harrisburg Hospital $842.40

Harrisburg X-Ray Associates 18.00

A. Z. Ritzman Associates 30.00

Emerald Drug Store 23.25

Dr. Nathan Sussman 492.00

Dr. Bittenbender and Dr. Patterson 30.00

Cardiovascular and Thoracic Associates 30.00

McKinley Hubbard 43.00

Disposition

Affirmed.


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