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COMMONWEALTH PENNSYLVANIA v. FULLER COMPANY AND AMERICAN MOTORISTS INSURANCE CO. (04/29/77)

decided: April 29, 1977.

COMMONWEALTH OF PENNSYLVANIA, ROBERT SUPPAN AND WORKMEN'S COMPENSATION APPEAL BOARD
v.
FULLER COMPANY AND AMERICAN MOTORISTS INSURANCE CO., APPELLANTS



Appeal from the Order of the Workmen's Compensation Appeal Board in case of Robert Suppan v. Fuller Company, No. A-71046.

COUNSEL

Thomas F. McDevitt, for appellants.

Morris Mindlin, with him James N. Diefenderfer, for appellees.

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

Author: Wilkinson

[ 30 Pa. Commw. Page 146]

On February 29, 1972, claimant-appellee during the course of his employment fell and fractured his right femur. Prior to that time (and since) he has had Paget's disease. He was placed in a full body cast, with his legs "spread eagled," for approximately 4 months. He was then fitted for and has since worn a brace to prevent refracturing because the Paget's disease rendered his bones more brittle. After paying compensation under an agreement dated March 14, 1972 and received by the Workmen's Compensation Appeal Board (Board) on April 3, 1972, appellants filed a Petition for Termination on February 26, 1973. In this petition it is alleged that claimant-appellee was completely recovered from the accident of February 29, 1972, as of January 31, 1973, and that any continuing disability was unrelated and unconnected to the accident.

[ 30 Pa. Commw. Page ]

The key issue in this case is whether there was medical testimony offered before the first referee to support the conclusion that the February 29, 1972 accident and its proper treatment aggravated the pre-existing Paget's disease thus causing claimant-appellee's present disability.

At the hearing before the first referee claimant-appellee offered medical testimony from two witnesses, one his family physician and the other an osteopathic

[ 30 Pa. Commw. Page 147]

    physician with a specialty of orthopedics. Appellants offered one medical witness, an orthopedic surgeon who treated claimant-appellee at the time of his injury. The first referee dismissed appellants' petition for termination, finding that claimant-appellee had not recovered satisfactorily from the accident, that the injury aggravated and seriously worsened the previous Pagetoid condition and that he remained disabled as a direct and causal result of the injury.

On appeal to the Board the first referee's decision was set aside and the case was remanded for an impartial expert to be appointed due to the conflict in the medical testimony.

At the rehearing to take the testimony of the impartial medical expert, counsel for claimant-appellee placed on record his objection to the remand citing our decision in Forbes Pavilion Nursing Home, Inc. v. Workmen's Compensation Appeal Board, 18 Pa. Commonwealth Ct. 352, 336 A.2d 440 (1975). In that case we decided that it was improper for the Board to remand to resolve a conflict in the medical testimony that had been resolved by the referee if there was medical testimony to support the referee. The objection was overruled and the impartial medical expert supported the testimony of appellants' witness. Based on this testimony the second referee sustained the petition for termination. On appeal to the Board, the remand was set ...


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