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MARION MYERS v. WORKMEN'S COMPENSATION APPEAL BOARD (FIRESTONE TIRE & RUBBER COMPANY) (07/23/82)

decided: July 23, 1982.

MARION MYERS, PETITIONER
v.
WORKMEN'S COMPENSATION APPEAL BOARD (FIRESTONE TIRE & RUBBER COMPANY), RESPONDENTS. FIRESTONE TIRE & RUBBER COMPANY, PETITIONER V. WORKMEN'S COMPENSATION APPEAL BOARD (MARION MYERS), RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in case of Marion E. Myers v. Firestone Tire & Rubber Company, No. 79861.

COUNSEL

Marc S. Jacobs, Galfand, Berger, Senesky, Lurie and March, for petitioner, Marion Myers.

David F. Bortner, with him Roger E. Legg, Legg and Kurland, for respondent, Firestone Tire & Rubber Company.

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

Author: Rogers

[ 67 Pa. Commw. Page 604]

Both the claimant and the employer in this workmen's compensation case have appealed from an order of the Workmen's Compensation Appeal Board reversing a referee's decision awarding compensation to the worker.

Marion Myers was employed as a janitor by Firestone Tire & Rubber Company when, on February 16, 1976 while pushing a hand truck loaded with an oil filled drum, she slipped and "pulled something" behind her left knee. She testified that she completed her work that day, but the next morning experienced swelling in her left leg and calf. At the hospital to which her employer directed her the condition of her left leg was diagnosed as thrombophlebitis. She was treated by a number of doctors for pain and swelling of her left leg and knee. She returned to work, however, on September 14, 1976. In June, 1977, still suffering pain she consulted a Dr. Jerome S. Weisberg, who at that time diagnosed her condition as inflammatory

[ 67 Pa. Commw. Page 605]

    arthritis of both knees, left ankle, and feet. The claimant left her work with Firestone for the last time on September 1, 1977 because, she testified, of pain in her leg. The principal question in this case is that of whether the incident of February 16, 1976 was the cause of her disability after September 1, 1977.

The claimant filed a claim petition on August 24, 1977. The referee, after hearings, found that the claimant had suffered a ruptured Baker's cyst and that the accident at work "at least flared the claimant's inflammatory arthritis" and, in addition to appropriate expenses, awarded compensation for the periods from February 17, 1976 to September 13, 1976 and from September 1, 1977 into the future. The referee also found that the employer was entitled to a credit of $1417.08 for accident and sickness benefits paid to the claimant. The employer appealed, assigning as error the award of compensation for disability during the period after September 1, 1977 only, contending that there was no competent evidence of a casual connection between the claimant's disability after September 1, 1977 and her work-related injury. The employer also challenged the referee's calculation of credit due it for sickness and accident benefits paid to the claimant. Although the employer had not raised any question on appeal concerning the propriety of the referee's decision with respect to the award of compensation for the period before September 1, 1977, the Appeal Board reversed the decision in its entirety on the ground that the claimant's medical evidence was equivocal and therefore incompetent.

Where there is no obvious causal relationship between an injury and work activity, a workmen's compensation claimant must establish the causal connection with unequivocal medical testimony in order to

[ 67 Pa. Commw. Page 606]

    recover, Kepler Homes v. Hand, 27 Pa. Commonwealth Ct. 291, 366 A.2d 969 (1976). Section 422 of The Pennsylvania Workmen's Compensation Act, Act of June 2, 1915, P.L. 736, as amended, 77 P.S. ยง 834 requires that all of the referee's findings of fact be supported by competent evidence. The claimant's medical evidence consisted crucially of the testimony of Dr. Weisberg, who, it will be remembered, testified that when he first saw the claimant some sixteen months after the accident she suffered at work she suffered from inflammatory arthritis in both legs. His testimony was adduced to establish that this condition was the result of the accident. It was pertinently as follows:

Q Doctor, do you have an opinion, based upon a reasonable degree of medical certainty, as to whether or not the injury that she described at work has any relationship in this disease process that you've described to us?

A From the initial time that I saw Mrs. Myers, I have been skeptical of the initial diagnosis of phlebitis.

Now, it's impossible for a doctor retrospectively, who has never seen a patient, a year later, to say for sure what happened. But with the degree of inflammation that she had in her joints when I saw her, I think that the accident ruptured a Baker's cyst, and that she may not have had phlebitis and it may not have been recognized for what the true problem was initially. Because in patients with inflammatory arthritis that we see, rupture of the joint capsule posteriorly in the calf of the leg is not uncommon.

[ 67 Pa. Commw. Page 607]

And I think that if I had to assess the problem, I think it was probably at least -- that aspect of the problem was at least directly related to the accident. And I think that she probably had a ruptured Baker's cyst. And I don't know how anyone could be certain.

I also think that we have a lady with an undiagnosed, but clearly definite, inflammatory arthritis. And it's a very sticky question medically as to what the cause of inflammatory arthritis is.

We really do not know the cause of rheumatoid arthritis. And there are some people who believe that trauma to the synovial membrane may play a role. And I would not be able to exclude the possibility that the trauma at least flared this woman's inflammatory arthritis.

And I think that she had no reason other than medical care for comming [sic] here initially. And I did not see her as someone out for secondary gain at the time. And I think that I would be inclined to believe that there's a direct relationship to the trauma.

Q Is that your opinion as her treating ...


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