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PHILLIP MCGINLEY v. WORKMEN'S COMPENSATION APPEAL BOARD (ACME MARKETS (09/16/83)

decided: September 16, 1983.

PHILLIP MCGINLEY, PETITIONER
v.
WORKMEN'S COMPENSATION APPEAL BOARD (ACME MARKETS, INC.), RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in case of Phillip McGinley v. Acme Markets, Inc., No. A-80590.

COUNSEL

Samuel L. Spear, Meranze, Katz, Spear & Wilderman, for petitioner.

Thomas F. McDevitt, Thomas F. McDevitt, P.C., for respondent, Acme Markets, Inc.

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

Author: Macphail

[ 77 Pa. Commw. Page 215]

Phillip McGinley (Claimant) contracted pneumonia as a result of his work as a warehouseman for Acme Markets, Inc. (Employer) and received workmen's compensation pursuant to a Notice of Compensation Payable beginning February 23, 1978. On April 14, 1978, Employer filed a Termination Petition, alleging that Claimant was able to return to work on March 28, 1978. After several hearings, the referee issued his decision and order dismissing the Termination Petition and reinstating total disability benefits. The Board, without taking further evidence, reversed the referee. Claimant's appeal to this Court followed.

The crucial events necessitating this appeal occurred on March 22, 1978. On that day, Claimant was examined by his treating physician, Dr. Barbieri. As testified to by Dr. Barbieri at a later deposition, the doctor examined Claimant and found him to be recovered from the pneumonia. Tragically, however, that evening Claimant fell down a flight of steps at his home, suffering multiple skull factures and hemmorhaging, resulting in total blindness and organic

[ 77 Pa. Commw. Page 216]

    brain syndrome. As a result of this fall, Claimant remains totally disabled.

Before the referee, Claimant presented the testimony of Dr. Linwood F. Tice, an expert pharmacologist but not a medical doctor, who testified to the side-effects of the drug Keflex, the drug prescribed by Dr. Barbieri for the treatment of Claimant's pneumonia. Among the effects noted by Dr. Tice were headaches, dizziness and fatigue, and Dr. Tice opined that Claimant's ingestion of the drug very definitely contributed to a sense of imbalance. The referee determined that the drug was a definite factor in the cause of Claimant's fall and he therefore denied the Termination Petition. The Board, upon reviewing Dr. Tice's testimony, held that the doctor's testimony was not competent and therefore could not form the basis for the referee's decision. From its opinion, the Board appeared to find the doctor's testimony not competent for two reasons: 1) Tice was testifying outside his area of expertise; and 2) Tice's testimony was not unequivocal, as is required of expert medical testimony on causation.*fn1 The Board then granted the Termination Petition.

On appeal to this Court, the parties have focused their attention entirely upon the question of whether Dr. Tice's testimony was competent and could be relied upon by the referee. Upon full examination of the procedural posture of this case, however, we find this issue irrelevant at this time.

As this Court has just recently reiterated:

[T]he party seeking termination of workmen's compensation benefits has ...


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