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BERNARD A. JONES v. COMMONWEALTH PENNSYLVANIA (03/21/80)

decided: March 21, 1980.

BERNARD A. JONES, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, WORKMEN'S COMPENSATION APPEAL BOARD, RESPONDENT



Appeal from the Order of the Workmen's Compensation Appeal Board in case of Bernard A. Jones v. Ortlieb Brewing Company, No. A-75013.

COUNSEL

Anthony J. Molloy, Jr., of counsel, Sagot & Jennings, for appellant.

Ronald F. Bove, of Swartz, Campbell & Detweiler, for respondent.

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

Author: Williams

[ 50 Pa. Commw. Page 175]

The appellant, Bernard A. Jones (Claimant), appeals from a decision of the Workmen's Compensation Appeal Board affirming the suspension of benefits he had been receiving for a work-related injury.

The Claimant was employed as an electrician for the Ortlieb Brewing Company. On May 14, 1976, he suffered a sprained right ankle in the course of his employment and began receiving Workmen's Compensation benefits from his employer. The Claimant returned to work on July 12, 1976 and at that time signed a final receipt. He continued working until July 21, 1976, when he became disabled again because of a problem with his sprained right ankle. As a result of that, the Claimant and his employer entered into a supplemental agreement giving the Claimant total disability benefits from July 23, 1976.

[ 50 Pa. Commw. Page 176]

About August 1, 1977 the employer filed a petition to suspend the payment of benefits, alleging that the Claimant had recovered from his work-related injury and would have been able to resume his former employment were it not for some physical condition unrelated to the previous work injury.

In order to satisfy its burden of proof, the employer presented the testimony of Dr. Leonard Klinghoffer, a Board certified orthopedic surgeon. Dr. Klinghoffer's testimony included his reading an affidavit he had submitted prior to the hearing before the Referee. Dr. Klinghoffer testified that he examined the Claimant on July 6, 1977, and found the Claimant to be favoring his left ankle and complaining of pain in the left ankle, but made no complaint at that time about his right ankle, the one he had injured at work. Dr. Klinghoffer further pointed out that the right foot and ankle appeared to be normal and that the right ankle had a full range of motion. The Doctor also stated that his clinical examination of the right ankle disclosed no sign of "Sudeck's atrophy", a neurovascular problem which can develop from trauma.

Dr. Klinghoffer X-rayed both feet, which revealed some demineralization in both feet and evidence of "osteoporosis" in both ankles. These findings, according to Dr. Klinghoffer, suggested a diffuse metastatic disease that was destroying the bone in both feet. Dr. Klinghoffer then testified that it was this condition that was disabling the Claimant, and that this condition was not related to the previous work injury. Dr. Klinghoffer added that he could not find anything related to the work injury that was keeping the Claimant from working at the time of the medical examination.

The Claimant, while not having the burden of proof on the petition before the Referee, did present medical evidence ...


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