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JOSEPH RICCIARDI v. COMMONWEALTH PENNSYLVANIA (03/22/78)

decided: March 22, 1978.

JOSEPH RICCIARDI, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, WORKMEN'S COMPENSATION APPEAL BOARD AND FLEMING COMPANY, RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in case of Joseph Ricciardi v. Fleming Company, No. A-71728.

COUNSEL

Julius E. Fioravanti, for petitioner.

William F. Sweeney, with him David L. Pennington, and Harvey, Pennington, Herting & Renneisen, Ltd., for appellees.

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

Author: Wilkinson

[ 34 Pa. Commw. Page 317]

This is an appeal from a decision by the Workmen's Compensation Appeal Board (Board) disallowing

[ 34 Pa. Commw. Page 318]

    a claim for compensation benefits by petitioner-claimant under the unusual pathological result doctrine. We affirm.

On May 13, 1969 claimant was working as a cement mason at a construction site for his employer, Fleming Construction Co. As he was bending over to smooth the surface of a poured concrete slab he felt a "snap" in his back and a sharp pain. Claimant was unable to straighten up and had to be taken home. That same day he sought treatment for his back problem from a chiropractor. The chiropractor subsequently treated claimant 11 times before claimant returned to work on June 24, 1969. Thereafter claimant continued to experience back pains and sought additional treatment from the chiropractor on an average of twice a year from 1969 to 1974.

On February 16, 1970 claimant filed a petition for workmen's compensation benefits. Following a hearing on May 17, 1972 the referee denied the petition and an appeal was taken to the Board. The case was remanded for a new hearing when it was discovered that a transcript of the first hearing was not available. Hearings were held on June 11, 1975 and January 22, 1976 at which time claimant and the chiropractor testified; the employer offered no evidence. At the hearing on June 11, 1975 claimant testified as to the May 13, 1969 incident and further stated that he had never had any back trouble prior to that incident. At the January 22, 1976 hearing, however, the chiropractor testified that he had treated claimant previously for back problems in 1960, 1963, 1966 and 1968. He further testified that he diagnosed claimant's injury on May 13, 1969 as an "acute strain and sprain of the lumbosacral spine accompanied by myofascitis and complicated by a right sciatic neuralgia." When asked by counsel for claimant whether

[ 34 Pa. Commw. Page 319]

    the cause was the incident at work, the doctor responded, "Yes, it could be." When asked, again by claimant's counsel, whether the injury could have been caused by anything else, the doctor responded, "It could be something else." Following these hearings, the referee issued a ...


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