Appeal from the Order of the Department of Public Welfare in the case of Appeal of Mary L. Spehar.
Bradley Davis Miller, Wisniewski and Miller, for petitioner.
Phillip Rosenthal, with him James S. Marshall, Assistant Counsel, for respondent.
President Judge Crumlish and Judges Rogers and Blatt, sitting as a panel of three. Opinion by Judge Blatt. Judge Mencer did not participate in the decision in this case.
[ 67 Pa. Commw. Page 312]
This is an appeal from an adjudication of the Department of Public Welfare (DPW) which affirmed the decision of the Wernersville State Hospital (Hospital) denying payment to the claimant of a claim filed pursuant to Act 534.*fn1 The claim was for salary lost and medical expenses incurred as the result of an injury to the claimant's right knee suffered during the course of her employment when she was kicked by a patient.
On February 2, 1979, the claimant, a Licensed Practical Nurse I, was allegedly injured as the result of a fall she sustained when a patient at the Hospital kicked her feet out from under her. On the day of the accident, her immediate supervisor documented the incident on the chart of the offending patient and also assisted the claimant in preparing an accident report. The Hospital personnel office never received this report, however, and first became aware of the incident over six months later, on August 29, 1979 when it received a letter from the claimant alleging that she had sustained an injury to her right knee and
[ 67 Pa. Commw. Page 313]
hip as a result of having been kicked by a patient. The Hospital then solicited and obtained an internal Unusual Incident Report, in which the claimant's unit director stated that the progress note on the patient's chart indicated that the claimant had been kicked by the patient on February 2, 1979 and had then lost her balance and fallen to the floor, landing on her left hip. The report also contained a statement by the supervisor that the claimant had removed the report forms from the appropriate internal Hospital mailbox on February 3, 1979, the supervisor having placed them there the night before, and had "put them in Library 3-11 drawer." The statement continued, "Apparently she choose [sic] not to submitte [sic] them. Stating, that she felt OK at that time." The Hospital subsequently prepared an Employer's Report of Occupational Injury in which it stated that the claimant had fallen on and bruised her left hip on the date in question. On June 19, 1980 it denied the claimant's request for benefits under Act 534, stating that her hospital discharge summary and the medical reports of her treating physicians were equivocal and inconclusive. On appeal, the hearing officer denied benefits and this appeal followed.
The claimant argues that, in view of the testimony of the orthopedic surgeon who treated her, the hearing officer erred in concluding that she had failed to produce evidence that she had in fact injured her right knee at the time and in the manner alleged.
It is well-settled, of course, that where as here no obvious connection exists between a claimant's injury and the alleged cause thereof, unequivocal medical evidence, not based on mere possibilities, must be produced by the claimant to establish the relationship. Trumpikas v. Department of Public Welfare, 50 Pa. Commonwealth Ct. 130, 412 A.2d 218 (1980). Moreover,
[ 67 Pa. Commw. Page 314]
medical testimony which is less than positive or based merely on possibilities does not constitute legally competent evidence. Westmoreland Casualty Company v. Workmen's Compensation Appeal Board, 36 Pa. Commonwealth Ct. 307, 387 A.2d 683 (1978). At the hearing, the claimant's physician answered "Yes" when asked if it was his opinion, with reasonable medical certainty, that the claimant's knee problem came about "directly in connection with the injury she sustained on February 2nd." However, when questioned by the Hospital personnel director about his letter of February 15, 1980 in which he had said that he "was ...