Appeal from the Order of the Workmen's Compensation Appeal Board in case of Dan I. Isadore v. Owens-Illinois, No. A-80444.
George B. Angell, for petitioner.
Harry K. Thomas, with him Ronald W. Folino, Knox, Graham, McLaughlin, Gornall and Sennett, Inc., for respondents.
Judges Williams, Jr., Craig and Doyle, sitting as a panel of three. Opinion by Judge Doyle.
[ 77 Pa. Commw. Page 347]
Before this Court is an appeal by Dan I. Isadore (Claimant) from a decision and order of the Workmen's Compensation Appeal Board (Board) affirming a referee's denial of disability benefits predicated on Claimant's failure to prove an injury in the course of his employment.
Claimant was employed as an "off-bearer" by Owens-Illinois (Employer). His job involved pushing and lifting items along and from a conveyor. In denying Claimant's petition for disability benefits, the referee made the following pertinent findings of fact, which essentially establish the framework of the issues in controversy:
[ 77 Pa. Commw. Page 3483]
. In support of his petition, the Claimant testified that he had undergone back surgery on June 29, 1976, but after a recooperative [sic] period, returned to work without any difficulty. He further testified that in the middle of October of 1978, and not on September 27, 1978, as indicated in his Claim Petition, while lifting a stack of corrugated paper, he felt something snap in his back and went down. He further experienced sharp pain in his back running down his right leg. The Claimant further testified that he sought medical attention and continued working until February 1, 1979. Prior thereto on January 12, 1979, he got a sudden pain in his back, the same as that which had occurred in October of 1978. At the hearing of April 17, 1979, the Claimant testified that the pain was not too bad at that time because he had not tried lifting things.
4. The Defendant presented the testimony of a private investigator. He had taken films of Claimant on April 10, 1979; April 12, 1979 and May 4, 1979. On all three occasions, the films showed that Claimant was lifting items weighing anywhere up to a hundred pounds without any difficulty. The film of April 10, 1979, taken prior to the Claimant's testimony of April 17, 1979, showed the Claimant changing tires, crawling under a truck and lifting cases of antifreeze weighing sixty-two pounds. All this was done without any apparent difficulty.
5. The Claimant presented the testimony of Edwin Medden, M.D. Dr. Medden first saw the Claimant on October 2, 1978. The history
[ 77 Pa. Commw. Page 349]
given by Claimant was that on September 27, 1978, he was pushing stock and suffered pain. The Claimant canceled an appointment with Dr. Medden scheduled for October 9, 1978, and Dr. Medden assumed that the back was better. Dr. Medden next saw the Claimant on April 18, 1979 and was given a history of Claimant's back again beginning to hurt at work on January 12, 1979. Based on the history given to him ...