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J.I. HASS COMPANY v. COMMONWEALTH PENNSYLVANIA (12/07/81)

decided: December 7, 1981.

J.I. HASS COMPANY, INC. AND TWIN CITY FIRE INSURANCE COMPANY, PETITIONERS
v.
COMMONWEALTH OF PENNSYLVANIA, WORKMEN'S COMPENSATION APPEAL BOARD AND JOHN JAMES MULVIHILL, RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in case of John James Mulvihill v. J.I. Hess Company, Inc., No. A-78290.

COUNSEL

Joseph Grochmal, with him Leonard P. Kane, Jr., Fried, Kane, Walters & Zuschlag, for petitioners.

C. William Berger, Berger, Kapetan, Malakoff & Meyers, P.C., for respondent, John James Mulvihill.

Judges Rogers, Blatt and Palladino, sitting as a panel of three. Opinion by Judge Palladino. Concurring Opinion by Judge Blatt.

Author: Palladino

[ 63 Pa. Commw. Page 83]

J.I. Hass Company, Inc. (Hass) and its insurer, the Twin City Fire Insurance Company, appeal here from an opinion and order of the Workmen's Compensation Appeal Board (Board) which affirmed a referee's award of total disability benefits to John J. Mulvihill (Claimant). We affirm.

On November 2, 1973, while working as an assistant painter for Hass, Claimant was accidently overcome by fumes from an epoxy sealer, and was temporarily rendered unconscious. Following this accident, Claimant, who had previously been healthy, began to have difficulty deciphering written words, and increasingly suffered from severe headaches, periods of depression, and personality changes characterized by "violent emotional reactions." These conditions eventually prevented Claimant from working after August 1, 1974, and on November 13, 1975, Claimant filed a claim petition for total disability benefits with the workmen's compensation authorities.

At a referee's hearing on Claimant's claim petition, conducted on May 3, 1976, the only expert medical evidence submitted was a deposition of Claimant's physician, Dr. Gerald M. Lisowitz, who testified that

[ 63 Pa. Commw. Page 84]

Claimant was totally disabled by an organic brain syndrome (brain damage) caused by his November 2, 1973, accident at Hass. Based on this evidence, the referee subsequently awarded benefits. On appeal, the Board concluded that the referee had prematurely terminated the proceedings below, and remanded the case to afford the petitioners an opportunity to adduce additional medical evidence. When the petitioners subsequently failed to present any medical evidence, however, the referee reissued his original opinion which was sustained on further appeal to the Board. The present appeal followed.

Before this Court, the petitioners allege that there is not substantial evidence in the record to support the Board's determination that Claimant's disability was causally related to his accident at Hass. Specifically, the petitioners allege (1) that Dr. Lisowitz's testimony was equivocal on the issue of causation since he conceded on cross-examination that he could not be "100 percent" sure that the compounds Claimant inhaled during his accident at Hass could cause brain damage, and (2) that Dr. Lisowitz's testimony should have been disregarded since he was not an expert toxicologist. We disagree.

It is well established that "where no obvious causal relationship exists between a work incident and a disabling injury, a workmen's compensation claimant must establish causation with unequivocal medical testimony in order to recover [benefits]." Cooper-Jarrett, Inc. v. Workmen's Compensation Appeal Board, 55 Pa. Commonwealth Ct. 204, 208, 423 A.2d 52, 55 (1980).

Where, as here, the party with the burden of proving causation has prevailed below, our scope of review is limited to determining whether "an error of law was committed, or a necessary finding of fact was ...


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