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

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 ...


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