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SOMERSET COUNTY COMMISSIONERS AND PENNSYLVANIA NATIONAL MUTUAL CASUALTY INSURANCE COMPANY v. COMMONWEALTH PENNSYLVANIA (03/12/79)

decided: March 12, 1979.

SOMERSET COUNTY COMMISSIONERS AND PENNSYLVANIA NATIONAL MUTUAL CASUALTY INSURANCE COMPANY, PETITIONERS
v.
COMMONWEALTH OF PENNSYLVANIA, WORKMEN'S COMPENSATION APPEAL BOARD AND WALTER J. KOUNTZ, RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in case of Walter J. Kountz v. Somerset County Commissioner, No. A-73169.

COUNSEL

Robert G. Rose, with him Spence, Custer, Saylor, Wolfe & Rose, for petitioner.

Nathaniel A. Barbera, with him Samuel D. Clapper, and Barbera and Barbera, for respondent.

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

Author: Wilkinson

[ 41 Pa. Commw. Page 216]

This is an appeal by Somerset County Commissioners and its insurance carrier, Pennsylvania National Mutual Casualty Company (employer), of a decision by the Workmen's Compensation Appeal Board (Board) which upheld a decision by the referee granting compensation to Walter J. Kountz (claimant). We affirm.

There are no issues of law involved here. As presented by petitioners and agreed to by respondents the question is whether the medical evidence supports the referee's finding of partial disability from a work-related injury. There is no conflict in medical testimony since the only Doctor testifying was that of claimant. Petitioners offered portions of the medical testimony which, standing alone, present less than the unequivocal medical testimony necessary to establish causation with reasonable medical certainty. In particular, the Doctor testified that he could not say

[ 41 Pa. Commw. Page 217]

    that claimant could not do heavy work but he certainly would advise against trying. Also, he testified that heavy work would have been ill-advised because of a previous nonwork-related accident. Petitioners argue that this throws out causation from the work-related accident. We disagree. While there was a pre-existing back condition which made heavy work dangerous, claimant risked the danger and suffered not one but two compensable accidents as a result. As a result of the work-related accidents he now has had a spinal fusion which makes the risk of further injury if working at his old job much greater.

Judge Mencer in his recent opinion in American Refrigerator Equipment Co. v. Workmen's Compensation Appeal Board, 31 Pa. Commonwealth Ct. 590, 377 A.2d 1007 (1977), a case very similar in its factual issues, ably set forth the principles of law involved here making it unnecessary for us to repeat them.

Viewing, as we must, the entire medical testimony rather than excerpts and taking it in the light most favorable to the claimant who had the burden and prevailed and giving him the benefit of all favorable interpretations and inferences, we cannot hold that the record does not support the finding of the referee, approved by the Board.

Accordingly, we will enter the ...


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