Appeal from the Order of the Workmen's Compensation Appeal Board in case of Louis Norato v. Tastykake Baking Company, No. A-76149.
Jeffrey I. Zimmerman, Law Offices of Herbert Monheit, for petitioner.
Kathleen Nagurny, with her, Howard M. Ellner, for respondent, Tastykake Baking Company.
Judges Blatt, Doyle and Barbieri, sitting as a panel of three. Opinion by Judge Barbieri.
[ 78 Pa. Commw. Page 267]
Claimant, Louis Norato, appeals from an order of the Workmen's Compensation Appeal Board (Board) reversing a referee's award entered following the Board's remand on appeal from a prior disallowance.
Claimant's claim petition requested total disability benefits for a back condition allegedly due to injury from a fall at work on June 1, 1971. After hearings, the referee disallowed compensation by order dated June 26, 1975, based upon the following finding:
2. The Claimant has a prior history of back problems including a back fusion in 1959. The Claimant's disability, of whatever degree, is secondary to his long standing low back disorders rather than as a result of his history of injury on June 1, 1971, the Claimant has failed to meet his burden of proof in establishing that any disability that the Claimant has, was a result of the incident of 6/1/71 or that the incident resulted in any loss of earnings or earning power. The Referee specifically finds that the Defendant through the competent and credible testimony of Dr. Bong Lee has established that though the claimant showed some evidence of internal derangement of the low back, said condition was
[ 78 Pa. Commw. Page 268]
one of long standing and is no way related to, nor could it be considered a residual of the injury of June 1, 1971.
2. The Claimant having failed to establish that any disability which he has at the present time was approximately caused by or aggravated by the industrial injury of June 1, 1971, he is not entitled to any benefits under the Workmen's Compensation Act.
3. Since the Defendant has shown with competent, credible evidence that any disability the Claimant has at the present time is not related to the injury of June 1, 1971, but rather the result of a long standing back ...