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D.L. CLARK CO. v. COMMONWEALTH PENNSYLVANIA (03/03/80)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: March 3, 1980.

D.L. CLARK CO., PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, WORKMEN'S COMPENSATION APPEAL BOARD AND ARLENE A. FEHER, RESPONDENTS

Appeal from the Order of the Workmen's Compensation Appeal Board in case of Arlene A. Feher v. D.L. Clark Co., No. A-73562.

COUNSEL

Paul K. Geer, with him Robert C. Jones, of Jones, Gregg, Creehan and Gerace, for petitioner.

Sam R. Keller, for respondent.

Judges Crumlish, Jr., Blatt and Craig, sitting as a panel of three. Opinion by Judge Crumlish, Jr. President Judge Bowman did not participate in the decision in this case. Judge DiSalle did not participate in the decision in this case.

Author: Crumlish

[ 49 Pa. Commw. Page 536]

The Workmen's Compensation Appeal Board affirmed a referee's award of compensation benefits to Arlene A. Feher. We affirm.

Feher, an employee of D.L. Clark Co., sustained an alleged work-related back injury on December 7, 1973*fn1 when she slipped on an oily steel flooring at her place of employment twisting her body. She felt a "twinge" of pain in her groin and immediately reported the incident to her supervisor. She resumed her normal work without further pain. Three days later she experienced a dull ache as she emerged from her automobile. Her family physician sent her to the hospital where she was put in a back brace. In April of 1974 she underwent disc surgery and in December of 1974 she returned to her same job where she worked until April, 1975, at which time she complained of the lifting

[ 49 Pa. Commw. Page 537]

    aspects of her job. She remained off work for approximately one year before returning part time to her former job.

Where the party with the burden of proof has prevailed before the factfinder, as Feher did here, our scope of review is limited to a determination of whether constitutional rights were violated, an error of law was committed, or any necessary finding of fact was unsupported by competent evidence. Empire Kosher Poultry, Inc. v. Workmen's Compensation Appeal Board, 43 Pa. Commonwealth Ct. 394, 402 A.2d 561 (1979).

The referee's finding, which is supported by sufficient competent evidence, and is therefore binding on this Court is:

7. After a review of the testimony, file records, exhibits and medical evidence offered both by the claimant and Defendant, your Referee finds as a fact that the claimant suffered a ruptured disc as a result of the injuries when she slipped on December 11, 1973. That she was totally disabled during the periods shown by the Defendant's records.

The finding is supported by the only medical evidence proffered, that of claimant's medical witness who unequivocally testified that she was disabled as a result of the December, 1973 accident. The following excerpt from the doctor's testimony is illustrative:

Q And can you say the present disability and the disability she had from the time of the accident until the present time was due to the accident she had on December 7, 1973?

A I would have to say so, in the absence of any other information. Yes.

Employer's contention that the referee's findings are insufficient to allow proper appellate review is without merit. It is argued that specified references

[ 49 Pa. Commw. Page 538]

    to testimony of particular witnesses and details of medical examinations performed are necessary to determine whether there is substantial competent evidence to support the referee's conclusions. Our review of the record reveals that the referee has weighed the conflicting evidence and properly and adequately met the duty of his fact-finding function. Although not artfully drafted, the referee's findings and conclusions are, together with the record, sufficient for him and for us to support his decision.

Employer next seeks a remand contending that the referee erred in refusing to consider a medical history form which employer says should have been admitted under Section 422 of The Pennsylvania Workmen's Compensation Act, Act of June 2, 1915, P.L. 736, as amended, 77 P.S. ยง 835. Section 422 provides in pertinent part:

Where any claim for compensation at issue before a referee involved twenty-five weeks or less of disability . . . the employee . . . may submit a certificate by any qualified physician as to the history, examination, treatment, diagnosis and cause of condition, and . . . such statement shall be admissible as evidence. . . . (Emphasis added.)

By expressly providing that a physician's certificate is admissible in claims involving 25 weeks or less of disability, the legislature intended to exclude such certificates in claims involving more than 25 weeks of disability. Young v. Workmen's Compensation Appeal Board, 39 Pa. Commonwealth Ct. 265, 395 A.2d 317 (1978). More importantly, the document in question contains no identifying marks as to the author or time of completion. Employer had several opportunities to present the deposition, actual testimony, or sworn statement of the author of the medical history form sought to be admitted and failed to do so.

[ 49 Pa. Commw. Page 539]

It is our conclusion that the referee's initial ruling was correct, i.e., that the physician's report could not be admitted over employee's objection where the claim was not limited to 25 weeks or less and where the claim was not properly documented.

Accordingly, we

Order

And Now, this 3rd day of March, 1980, the order of the Workmen's Compensation Appeal Board dated June 22, 1978, is affirmed. It is ordered that judgment be entered in favor of Arlene A. Feher and against D.L. Clark Company, a division of Beatrice Foods.

It is ordered that D.L. Clark Company shall pay compensation to the claimant, Arlene A. Feher, at the rate of $93.33 per week for the days missed as shown by company records as follows:

1. That the claimant is entitled to compensation from 12/12/73 to 12/4/74, a period of 51 weeks including the one week waiting period;

2. The claimant is entitled to the following additional days disability:

From 12/5/74 to 12/10/74 (5 days)

From 12/11/74 to 12/12/74 (1 day)

From 12/13/74 to 12/16/74 (3 days)

From 12/17/74 to 12/18/74 (1 day)

From 12/19/74 to 12/20/74 (1 day)

From 1/14/75 to 1/15/75 (1 day)

From 1/16/75 to 1/17/75 (1 day)

From 1/21/75 to 1/28/75 (7 days)

From 1/30/75 to 2/11/75 (12 days)

From 2/12/75 to 2/13/75 (1 day)

From 3/10/75 to 3/11/75 (1 day)

From 3/20/75 to 3/25/75 (5 days)

From 4/3/75 to 4/4/75 (1 day)

From 4/9/75 to 1/1/76 (207 days)

From 1/1/76 to 4/29/76 (119 days)

From 4/30/76 to 5/3/76 (3 days)

From 5/4/76 to 5/6/76 (2 days)

From 5/10/76 to 5/11/76 (1 day)

From 5/17/76 to 5/18/76 (1 day)

From 5/21/76 to 5/25/76 (4 days)

From 5/27/76 to 5/28/76 (1 day)

From 6/2/76 to 6/3/76 (1 day)

From 6/8/76 to 6/9/76 (1 day)

From 6/16/76 to 6/17/76 (1 day)

From 6/23/76 to 6/24/76 (1 day)

From 6/30/76 to 7/1/76 (1 day)

From 7/19/76 to 7/20/76 (1 day)

From 7/22/76 to 7/23/76 (1 day)

From 7/28/76 to 7/30/76 (2 days)

From 8/4/76 to 8/5/76 (1 day)

From 8/11/76 to 8/12/76 (1 day)

From 8/18/76 to 8/19/76 (1 day)

From 8/26/76 to 8/30/76 (4 days)

From 9/1/76 to 9/2/76 (1 day)

From 9/9/76 to 9/10/76 (1 day)

From 9/17/76 to 9/20/76 (3 days)

From 9/23/76 to 9/24/76 (1 day)

From 9/30/76 to 10/1/76 (1 day)

From 10/5/76 to 10/6/76 (1 day)

From 10/12/76 to 10/13/76 (1 day)

From 10/15/76 to 10/25/76 (10 days)

From 10/27/76 to 10/28/76 (1 day)

From 11/2/76 to 11/3/76 (1 day)

From 11/5/76 to 11/8/76 (3 days)

From 11/9/76 to 11/10/76 (1 day)

From 11/17/76 to 11/18/76 (1 day)

From 12/1/76 to 12/6/76 (5 days)

From 12/9/76 to 12/13/76 (4 days)

From 12/16/76 to 12/17/76 (1 day)

[ 49 Pa. Commw. Page 541]

From 1/5/77 to 1/6/77 (1 day)

From 1/8/77 to 1/10/77 (2 days)

From 1/12/77 to 1/13/77 (1 day)

From 1/19/77 to 1/20/77 (1 day)

From 1/26/77 to 1/27/77 (1 day)

From 1/31/77 to 2/1/77 (1 day)

From 2/2/77 to 2/3/77 (1 day)

From 2/9/77 to 2/10/77 (1 day)

From 2/16/77 to 2/17/77 (1 day)

From 2/23/77 to 2/24/77 (1 day)

From 3/9/77 to 3/10/77 (1 day)

From 3/16/77 to 3/17/77 (1 day)

From 3/18/77 to 3/21/77 (3 days)

From 3/23/77 to 3/24/77 (1 day)

From 3/28/77 to 3/29/77 (1 day)

From 3/31/77 to 4/25/77 (25 days)

From 4/26/77 to 4/27/77 (1 day)

From 4/29/77 to 5/2/77 (3 days)

From 5/4/77 to 5/5/77 (1 day)

From 5/6/77 to 5/9/77 (3 days)

The claimant is entitled to compensation for any days which she misses for lost time in the future due to the injury which she sustained in accordance with the provisions of the Workmen's Compensation Act.

Interest at ten percent (10%) per annum is assessed on all deferred payments.

The Defendant is further directed to pay any and all medical bills outstanding and on account of the injury to Arlene Feher. The Defendant is required to pay to Samuel Sherman, M.D., the sum of $150.00 for testifying and the sum of $75.00 for his medical bill.

The Defendant is further directed to pay approved attorney's fees in the amount of twenty percent (20%) of the award to claimant's counsel, Samuel R. Keller, Esquire, from the benefits due Arlene A. Feher.

President Judge Bowman did not participate in the decision in this case.

[ 49 Pa. Commw. Page 542]

Judge DiSalle did not participate in the decision in this case.

Disposition

Affirmed.


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