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MARTIN N. HOOVER SHOPS v. COMMONWEALTH PENNSYLVANIA (03/19/82)

decided: March 19, 1982.

MARTIN N. HOOVER SHOPS, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, WORKMEN'S COMPENSATION APPEAL BOARD AND ALBERT REICHARD, JR., RESPONDENTS. ALBERT REICHARD, JR., PETITIONER V. COMMONWEALTH OF PENNSYLVANIA, WORKMEN'S COMPENSATION APPEAL BOARD AND MARTIN N. HOOVER SHOPS, RESPONDENTS



Appeals from the Order of the Workmen's Compensation Appeal Board in the case of Albert Reichard, Jr. v. Martin N. Hoover Shops, No. A-79423.

COUNSEL

Harold W. Budding, for petitioner, Martin N. Hoover Shops.

John L. Sampson, Hassel, Yost & Sorrentino, for respondent, Albert Reichard, Jr.

Judges Mencer, Rogers and Williams, Jr., sitting as a panel of three. Opinion by Judge Rogers.

Author: Rogers

[ 65 Pa. Commw. Page 397]

This protracted workmen's compensation litigation has its origin in injuries sustained by Albert Reichard on July 6, 1971, while he was performing the duties of his employment as a welder with Martin N. Hoover Shops. On that date the claimant was engaged in propagating a weld when an open can of paint thinner, apparently left in the area by a co-worker, was ignited spraying Mr. Reichard with flaming liquid and causing him to suffer second and third degree burns over sixty per cent of his body. In the course of attempting to extinguish the flames, the claimant was thrown to the shop floor by fellow workers and there rolled vigorously about. An ambulance was then summoned and the claimant was hospitalized for a lengthy course of treatment involving skin grafts and other care. On July 30, 1971, Mr. Reichard and his employer entered into an agreement for compensation for total disability related to this accident.

Following his hospital discharge in late September or early October, 1971, the claimant continued his recovery at home until March, 1972, when, unable to return to his former occupation, he took a job as a cook at a college. From the time he took up his duties at the college, which involved long periods of standing, the claimant experienced back pain the severity of which gradually increased until he was required to quit this work. Thereafter, Mr. Reichard was referred by the

[ 65 Pa. Commw. Page 398]

    insurance carrier for Martin Hoover Shops to a Dr. Charles R. Winter for evaluation. Dr. Winter's evaluation disclosed the presence of a potentially disabling spinal condition described as a Grade I lumbosacral spondylolisthesis. The claimant was referred by Dr. Winter to several physicians in the Lancaster area for treatment of this back condition. Despite several short-lived attempts to return to work in various capacities, the claimant was hospitalized in March, 1973, in order to undergo a surgical spinal fusion performed by a Dr. John Shertzer. The expenses attendant to this hospitalization and the coincident period of disability are the subject of a Supplemental Agreement for Compensation entered into between the claimant and Martin Hoover Shops on April 26, 1973.

The claimant's back condition improved throughout the summer of 1973 and, on October 15, 1973, he executed a Final Settlement Receipt thereby agreeing that his disability, which began in July, 1971, had ceased. This assessment proved to be premature and the claimant's back pain recurred during the early months of 1974. Throughout the period from January to July, 1974, the claimant was employed as a cook in at least three Chester County eating establishments. Dr. Shertzer's examination of the claimant on July 3, 1974 revealed motion at the site of the earlier surgical fusion thereby indicating, as the physician testified, that "the fusion didn't take." On July 11, 1974, the claimant was readmitted to Lancaster General Hospital where he underwent a second course of spinal surgery designed to rectify the failure of attachment of the original fusion. It appears that this treatment, like the earlier ones, was not completely successful. The claimant was rehospitalized in 1977 and 1978 but has since steadily improved. He has returned to restaurant work and, at the time of the referee's hearing on August 22, 1979, testified that with the exception of

[ 65 Pa. Commw. Page 399]

    periods of inclement weather he is presently without back discomfort.

The principal question before us is that of the extent of the employer's liability for the period of disability attendant to the second surgical procedure in July, 1974. In August, 1974, the claimant filed a petition for reinstatement of the earlier compensation agreement alleging that his back condition had recurred due to the failure of the first spinal fusion. The employer filed a responsive answer denying that the second surgical procedure was related to the original injuries sustained in July, 1971. Two evidentiary hearings were subsequently held at which the claimant testified to many of the events described above and Dr. Shertzer testified that the necessity for the second surgical procedure was the direct result of the failure of the first procedure. On cross-examination Dr. Shertzer was asked whether he could, with a reasonable degree of medical certainty, causally attribute the claimant's back condition to the initial burn injuries. Dr. Shertzer, who had not treated the claimant's burn injuries and, indeed, first saw the claimant some two years after the 1971 fire, testified that it was possible that the back condition was caused by trauma sustained in 1971 but that "[i]f you are trying to pin me down to say his fire caused his back pain, I can't do it." On the basis of this evidence the referee denied the claimant's ...


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