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JOHN T. MITCHELL v. WORKMEN'S COMPENSATION APPEAL BOARD (TOWNSEND & BOTTUM (04/13/83)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: April 13, 1983.

JOHN T. MITCHELL, JR., PETITIONER
v.
WORKMEN'S COMPENSATION APPEAL BOARD (TOWNSEND & BOTTUM, INC.), RESPONDENTS

Appeal from the Order of the Workmen's Compensation Appeal Board in case of John T. Mitchell, Jr. v. Townsend & Bottum, Inc., No. A-79762.

COUNSEL

Amiel B. Caramanna, Jr., for petitioner.

Meyer, Darragh, Buckler, Bebenek & Eck, for respondent, Townsend & Bottum, Inc.

President Judge Crumlish, Jr. and Judges MacPhail and Doyle, sitting as a panel of three. Opinion by Judge Doyle.

Author: Doyle

[ 73 Pa. Commw. Page 402]

This is an appeal by John T. Mitchell, Jr. (Claimant) from the decision and order of the Workmen's Compensation Appeal Board (Board) which affirmed the decision of a referee to deny a claim petition filed against his employer, Townsend & Bottum, Inc. Following a careful review of the record, we affirm the order of the Board.

Claimant was employed by Townsend & Bottum as a plumber and welder's helper. On November 14, 1977, Claimant sought medical treatment for a loss of hearing. Claimant complained that he had lost hearing in his right ear over an eight year period and had recently experienced vertigo before suffering sudden hearing loss to the left ear.*fn1 Following an examination by John DiCicco, M.D. which revealed that Claimant had no hearing in either ear, Dr. DiCicco concluded that the loss of hearing in the left ear was the result of a perilymphatic fistula.*fn2 Dr. DiCicco explained that this condition may be caused by physical exertion, coughing, nose blowing, or a loud traumatic noise. In an effort to attribute the disability to his employment, Claimant testified that several months previous he had been exposed to a boiler blowdown blast at his place of employment. The referee did not accept this testimony, however, as establishing the necessary causal connection. The referee found that:

[ 73 Pa. Commw. Page 4035]

. The claimant's testimony is replete with variances, divergences, and contradictions, involving his version of alleged exposure, injury, notice, disability, and other elements.

The referee therefore concluded that Claimant's disability was not work related. After the Board affirmed the referee without accepting additional evidence, Claimant appealed to this Court alleging that the referee capriciously disregarded competent evidence.

Where there is no obvious causal connection between a claimant's disability and his employment, the causal connection must be established by unequivocal medical testimony. Heffer v. GAF Corporation, 29 Pa. Commonwealth Ct. 365, 370 A.2d 1254 (1977). Medical testimony based on possibility, or even probability, is not legally competent to establish the causal connection in such a case. Halaski v. Hilton Hotel, 487 Pa. 313, n. 2, 409 A.2d 367, n. 2 (1979); Czankner v. Sky Top Lodge, Inc., 13 Pa. Commonwealth Ct. 220, 308 A.2d 911 (1973). The record shows that Dr. DiCicco's unequivocal conclusion that Claimant's disability was work related was based exclusively upon a hypothetical question which assumed a fact in contradiction to the referee's findings.*fn3 When all reference to the contradictory fact was deleted, Dr. DiCicco's opinion was substantially altered:

Well, if going by the records and going by what is stated here, I couldn't make the connection . . . In other words, I couldn't say that his hearing loss was due to a blast, that he had acoustic trauma which he had underwent in July, now

[ 73 Pa. Commw. Page 404]

    presenting on November 14 with that type of history.

Thus, considering Dr. DiCicco's entire testimony, it is clear this evidence is not competent to establish the causal link to relate Claimant's disability with his employment. Accordingly, the order of the Workmen's Compensation Appeal Board is affirmed.

Order

Now, April 13, 1983, the order of the Workmen's Compensation Appeal Board at A-79762, dated March 12, 1981, is hereby affirmed.

Disposition

Affirmed.


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