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decided: January 12, 1976.


Appeal from the Order of the Workmen's Compensation Appeal Board in case of Rose L. Norman, Widow of Peter Norman v. A.R. Bar, Inc. and Westmoreland Casualty Company, No. A-68892.


Earl T. Britt, with him Duane, Morris & Heckscher, for appellants.

Sylvan D. Einhorn, with him Winer and Einhorn, P.C., and James N. Diefenderfer, for appellees.

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

Author: Rogers

[ 22 Pa. Commw. Page 611]

A.R. Bar, Inc., an employer, and its insurance carrier have appealed from an order of the Workmen's Compensation Appeal Board affirming a referee's decision granting benefits to the widow of Peter Norman.

Mr. Norman was employed as a janitor at A.R. Bar, Inc.'s bar and night club at a salary of $50 per week. On April 14, 1969, a case of beer fell and injured his right foot. Mr. Norman consulted Dr. Jacob Levin on April 24, 1969. Dr. Levin then ascertained, as he later testified at the referee's hearing, that Mr. Norman was diabetic, that his injured foot was infected, and that he complained of nausea, vertigo, insomnia and pain. Dr. Levin treated the foot, and administered medication, including increased dosages of insulin. The decedent continued his visits to and treatment by Dr. Levin until May 17, 1969, after which date, contrary to the doctor's advice, he discontinued visiting the doctor and returned to work. Mr. Norman again consulted Dr. Levin on July 1, 1969. The doctor found that the decedent's foot was turning dark, thus evidencing the "beginning of gangrene" and that the decedent was generally ill. Dr. Levin had the decedent admitted to a hospital under the care of a surgeon and an internist. Mr. Norman died on July 11, 1969. The official death certificate listed the causes of death as hepatorenal failure and hemorrhage due to advanced cirrhosis, diabetes mellitus and uremia.

The claimant had the burden of proving that her husband's death was causally related to his injury at work. Since she prevailed below, we must affirm unless we conclude that constitutional rights were violated, the law was erroneously applied or the findings of fact are not supported by substantial evidence. Workmen's Compensation Appeal Board and Barta v. Envelope Manufacturing Association, 18 Pa. Commonwealth Ct. 111, 334 A.2d 318 (1975).

The appellants advance two grounds for overturning the Board's decision: the first, that the referee's finding

[ 22 Pa. Commw. Page 612]

    that Mr. Norman's death was caused by the injury to his foot is not supported by the evidence, and the second, that the Board erred in not denying compensation by reason of the decedent's failure, after May 17, 1969 and until July 1, 1969, to comply with his doctor's instructions not to return to work and to continue in the doctor's care.

Dr. Levin testified that on July 1, 1969, Mr. Norman's foot was infected and had the appearance of the beginning of a gangrenous condition, and that the injury to the foot had thrown his "whole diabetic control out of wack." It was his opinion that Mr. Norman would have lived "a good many more years if he had not had the accident." The appellants' medical witness, who testified from medical reports, testified that Mr. Norman's foot was not infected or gangrenous at the time of death and that the accident of April 14, 1969 did not contribute to his demise. An impartial medical witness offered the opinion that the injury was an aggravating causative factor that led to Mr. Norman's death, but that it was not the primary cause of death. The appellants say that the opinions of Dr. Levin and the impartial medical witness were based on a mere supposition that Mr. Norman's foot was gangrenous and that this was an unsubstantial basis for their conclusion that the death was hastened by the injury. The fallacy with the appellants' argument is that Dr. Levin did not base his opinion solely on the presence of gangrene. It is clear that the decedent's foot was badly infected. Dr. Levin testified that the injury, whether or not gangrenous, aggravated the decedent's diabetes and led to the primary cause of death. This was substantial evidence supporting the referee's finding on causation and we may not disturb the finding merely because another expert testified to the contrary. Weaver v. Workmen's Compensation Appeal Board, 15 Pa. Commonwealth Ct. 292, 325 A.2d 673 (1974).

The appellants' second argument is based on Section 306(f) of The Pennsylvania Workmen's Compensation Act, Act of June 2, ...

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