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GREENE COUNTY MEMORIAL HOSPITAL AND PACIFIC EMPLOYERS INSURANCE COMPANY v. COMMONWEALTH PENNSYLVANIA (08/04/81)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: August 4, 1981.

GREENE COUNTY MEMORIAL HOSPITAL AND PACIFIC EMPLOYERS INSURANCE COMPANY
v.
COMMONWEALTH OF PENNSYLVANIA, WORKMEN'S COMPENSATION APPEAL BOARD AND HELEN I. COLE, RESPONDENTS

Appeal from the Order of the Workmen's Compensation Appeal Board in the case of Helen I. Cole v. Greene County Memorial Hospital, No. A-77690.

COUNSEL

David M. McCloskey, Will and Keisling, for petitioners.

R. Wallace Maxwell, Maxwell and Davis, for respondent, Helen I. Cole.

Judges Craig, MacPhail and Palladino, sitting as a panel of three. Opinion by Judge MacPhail.

Author: Macphail

[ 61 Pa. Commw. Page 83]

Greene County Memorial Hospital (Employer) appeals here from a decision of the Workmen's Compensation

[ 61 Pa. Commw. Page 84]

Appeal Board (Board), dated July 10, 1980, that affirmed the referee's decision granting workmen's compensation benefits to Helen I. Cole (Claimant).

Claimant worked for Employer for more than 15 years as a licensed practical nurse. She alleged that she injured her back while lifting and turning a very heavy patient. Claimant was treated for low back pain in Employer's emergency room on several occasions beginning in March 1975. She continued to work until April 21 when she became totally disabled. Claimant was hospitalized on two occasions, first at Employer in May 1975 and subsequently at West Virginia University Hospital in July 1975. Claimant was found, inter alia, to be suffering from mild scoliosis of the spine, osteoporosis and degenerative arthritis of the spine.

On October 4, 1976, Claimant filed for workmen's compensation benefits under The Pennsylvania Workmen's Compensation Act (Act), Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 1, alleging that on March 19, 1975*fn1 she had sustained a work-related injury. Employer denied liability.

The first of several hearings was held in December, 1976. The referee issued his initial decision on April 19, 1978, in which he held that Claimant had sustained a work-related injury and was entitled to compensation benefits. Employer appealed to the Board. The Board set aside the referee's determination and remanded the case to him for further clarification of the finding that Claimant had given Employer notice pursuant to the Act.*fn2 After conducting additional

[ 61 Pa. Commw. Page 85]

    hearings the referee again awarded Claimant benefits. On appeal, the Board affirmed the referee. Employer appealed to this Court.

The law in workmen's compensation cases is well settled. Where the party with the burden of proof prevails before the referee and the Board takes no additional evidence, our review is limited to whether any constitutional rights were violated, an error of law was committed or a necessary finding of fact was unsupported by substantial evidence. American Refrigerator Equipment Co. v. Workmen's Compensation Appeal Board, 31 Pa. Commonwealth Ct. 590, 377 A.2d 1007 (1977).

In its appeal to the Court, Employer asserts that there is not substantial evidence in the record to support two of the referee's findings of fact, specifically (1) that Claimant gave notice, as required by the Act, of her injury to Employer and (2) that Claimant's disability was caused by a work-related injury.

Section 311 of the Act provides in pertinent part as follows:

Unless the employer shall have knowledge of the occurrence of the injury, or unless the employe or someone in his behalf, or some of the dependents or someone in their behalf, shall give notice thereof to the employer within twenty-one days after the injury, no compensation shall be due until such notice be given, and, unless such notice be given within one hundred and twenty days after the occurrence of the injury, no compensation shall be allowed.

77 P.S. § 631. Sections 312 and 313 of the Act further provide that the notice shall include the time, place and nature of the injury and that the notice may be given to an employee's superior. 77 P.S. §§ 632 and 633.

[ 61 Pa. Commw. Page 86]

At the initial hearing Claimant testified she had told the supervising nurse, who was on duty the night of the incident, that she had hurt her back but that no incident*fn3 report had been filed because Claimant thought she had only strained a muscle. Claimant further testified that she subsequently told all the supervising nurses of the incident. In her claim petition Claimant stated that on May 12, 1975, she had orally informed Mrs. Reese, the head of the nursing department, that she had injured her back lifting a patient.*fn4 At the time of the second series of hearings, Mrs. Reese was an invalid and was both physically and mentally unable to testify in person or by deposition.

As its evidence on the issue of notice, Employer entered the deposition of three nurses who supervised Claimant before and after the incident. One of these nurses denied all knowledge of the incident but admitted on cross-examination that the incident could have happened without her being aware of it. Another nurse could not remember being told of the incident and the third nurse remembered talking with Claimant about the incident sometime during the summer months.

It is well settled that matters of credibility and conflicting testimony as to whether notice has been given is a question of fact for the referee. Canterna v. United States Steel Corp., 12 Pa. Commonwealth Ct. 579, 317 A.2d 355 (1974). Further, facts found by

[ 61 Pa. Commw. Page 87]

    the referee, supported by substantial evidence are binding on the review court. Katz v. Evening Bulletin, 485 Pa. 536, 403 A.2d 518 (1979). "Substantial evidence" is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Workmen's Compensation Appeal Board v. Auto Express, Inc., 21 Pa. Commonwealth Ct. 559, 346 A.2d 829 (1975).

In his second decision the referee stated he had resolved the conflicting notice testimony in favor of Claimant and found that Employer had notice on March 12, 1975. Our review of the record convinces us that although he could have found otherwise, we cannot say that his finding was not based on substantial evidence.

Employer further asserts there was not unequivocal medical testimony to support a finding the Claimant's disability was caused by a work-related injury and that the physician only hypothesized an injury. Although the general rule is that unequivocal medical testimony is essential where no obvious causation exists to prove an injury, Westmoreland Casualty Co. v. Workmen's Compensation Appeal Board, 36 Pa. Commonwealth Ct. 307, 387 A.2d 683 (1978), this rule is inapplicable to the instant case. Our Supreme Court has stated: "Where one is doing an act that requires force or strain and pain is experienced at the force or strain, the injury may be found to have been established. Pain is an excellent symptom of an injury." Morgan v. Giant Markets, Inc., 483 Pa. 421, 424, 397 A.2d 415, 416 (1979). In Morgan, claimant experienced severe back pain when he attempted to unload his bakery truck. Compensation benefits were granted even though claimant's medical evidence consisted solely of medical bills describing treatment and costs. In the instant case, Claimant experienced pain while performing her regular duty of turning bedridden patients.

[ 61 Pa. Commw. Page 88]

Her medical evidence included reports from several physicians as well as a deposition of one of them. We hold, therefore, under the facts of this case and on the authority of Morgan that unequivocal medical testimony is not required.*fn5 The credibility of the medical testimony as well as the other testimony is determined by the trier of fact. The referee having heard all the testimony and examined all the evidence was convinced Claimant had sustained a work-related injury.

While it is true that Claimant continued to work for several weeks after the March incident, this does not preclude a finding that she suffered a compensable injury. The medical testimony shows that Claimant suffered from chronic back problems. This Court in Duquesne Light Co. v. Battisti, 44 Pa. Commonwealth Ct. 350, 403 A.2d 1352 (1979), recognized that someone accustomed to some degree of periodic pain would remain on the job until she could no longer carry on. Claimant in the instant case continued to work until it was no longer possible to do so. In Duquesne this Court further recognized that although the delay in leaving weakened the causal chain of events and raised the question of credibility, the Court would not disturb the finding of the referee who heard the testimony and determined the requisite causation was present, so long as the record, considered in its entirety, supports that determination. Our review of the record convinces us that such is the case here.

[ 61 Pa. Commw. Page 89]

Order affirmed.*fn6

Order

And Now, this 4th day of August, 1981, the order of the Workmen's Compensation Appeal Board, dated July 10, 1980, affirming the referee's decision granting compensation benefits to Helen I. Cole is affirmed. It is hereby ordered that judgment be entered in favor of Helen I. Cole and against Greene County Memorial Hospital and Pacific Employer's Insurance Company to pay compensation to Helen I. Cole at the rate of $93.47 per week from April 21, 1975, and continuing into the future subject to the terms and conditions of The Pennsylvania Workmen's Compensation Act, as amended.

All deferred payments of compensation shall bear interest at the rate of 10 percent. Greene County Memorial Hospital and Pacific Employer's Insurance Company are also directed to pay Helen I. Cole's medical expenses incurred in the treatment of her work-related injury upon presentation thereof.

Greene County Memorial Hospital and Pacific Employer's Insurance Company are also directed to pay R. Wallace Maxwell, Esquire, counsel for Helen I. Cole, 20 percent out of each and every weekly compensation benefit check due for the first two years of the award from April 21, 1975 and to pay the balance thereof directly to Helen I. Cole and, after the expiration of the two year period, to pay the full amount of the weekly compensation benefit check directly to Helen I. Cole.

Disposition

Affirmed.


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