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UNITY BUILDERS v. COMMONWEALTH PENNSYLVANIA (04/15/80)

decided: April 15, 1980.

UNITY BUILDERS, INC. AND FIREMAN'S INSURANCE COMPANY, PETITIONERS
v.
COMMONWEALTH OF PENNSYLVANIA, WORKMEN'S COMPENSATION APPEAL BOARD AND THOMAS ELLISOR, RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in case of Thomas Ellisor v. Unity Builders, Inc., No. A-76166.

COUNSEL

Edward A. McFarland, Thomson, Rhodes & Grigsby, for petitioners.

Clifford A. Johns, Jr., for respondent, Thomas Ellisor.

President Judge Crumlish and Judges Rogers and Craig, sitting as a panel of three. Opinion by Judge Rogers.

Author: Rogers

[ 50 Pa. Commw. Page 528]

Unity Builders, Inc. and its insurer, Fireman's Insurance Company (Petitioners) have appealed from an order of the Workmen's Compensation Appeal Board (Board) affirming a referee's dismissal of the petitioners' petition for termination of workmen's compensation benefits being paid by petitioners to Thomas Ellisor.

On September 12, 1977, Ellisor sustained an injury to his neck in the course of his employment with Unity Builders, Inc. Compensation benefits were paid to Ellisor for total disability pursuant to a compensation agreement between Ellisor and petitioners. On April 24, 1978, petitioners filed a termination petition with a request for a supersedeas to be effective as of that date. Petitioners subsequently amended their requests for supersedeas, to have it effective as of May 26, 1978, which the referee granted.

[ 50 Pa. Commw. Page 529]

At the referee's hearings, petitioners produced two medical expert witnesses, one of whom testified unequivocally that Ellisor was no longer generally disabled as a result of his injury of September 12, 1977, and specifically that Ellisor did not suffer from spastic torticollis, a condition which renders neck movement painful. Ellisor adduced the testimony of one medical expert, Dr. Ravella, who testified unequivocally that Ellisor suffered from spastic torticollis. When testifying regarding the causal relationship between Ellisor's condition and his September 12, 1977 injury, however, Dr. Ravella answered in terms which the referee found to be equivocal. Ellisor testified that he had had no problems with his neck prior to his September 12, 1977 injury and that at the time of the hearing he was still suffering from neck pains which prevented him from seeking employment.

The referee found, and the Board affirmed, that Ellisor suffered from spastic torticollis which was caused by his September 12, 1977 injury and that petitioners had failed to prove that all disability resulting from the September 12, 1977 injury had ceased.

Petitioners contend that some of the referee's findings of fact cannot be sustained without a capricious disregard of competent evidence in the record and that, if these findings are sustainable, they are inconsistent with other of the referee's findings. The findings of the referee objected to are:

14. It was the doctor's [Dr. Ravella] opinion that spastic torticollis resulted from cervical trauma, psychological factors, a progressive curia condition of metabolic acidosis. The doctor ruled out the later three causes as factors in the claimant's case and was of the opinion that ...


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