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PATTIE C. HILLIARD v. WORKMEN'S COMPENSATION APPEAL BOARD (WILLIAM PENN HOTEL) (12/14/83)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: December 14, 1983.

PATTIE C. HILLIARD, PETITIONER
v.
WORKMEN'S COMPENSATION APPEAL BOARD (WILLIAM PENN HOTEL), RESPONDENTS. WILLIAM PENN HOTEL, PETITIONER V. WORKMEN'S COMPENSATION APPEAL BOARD (HILLIARD), RESPONDENTS

Appeals from the Order of the Workmen's Compensation Appeal Board in case of Pattie C. Hilliard v. William Penn Hotel, No. A-81102.

COUNSEL

Eugene A. Lincoln, for petitioner, Pattie C. Hilliard.

James W. Young, Jr., Sharlock, Repcheck, Engel & Mahler, for respondent/petitioner, William Penn Hotel.

Mark Gordon, Meyer, Darragh, Buckler, Bebenek & Eck, for Commercial Union Insurance Companies and William Penn Hotel.

Judges Williams, Jr., Barry and Blatt, sitting as a panel of three. Opinion by Judge Blatt.

Author: Blatt

[ 79 Pa. Commw. Page 98]

The present appeals involve an order of the Workmen's Compensation Appeal Board (Board) affirming a referee's order which dismissed a petition, dated February 9, 1979, claiming benefits for a wrist fracture, and which awarded benefits sought under a second petition, dated November 27, 1979, claiming a work-related injury from the aggravation of a pre-existing granuloma (lesion). Pattie C. Hilliard (claimant) appeals the dismissal of the February 9 petition and the time period for which benefits were awarded under the November 27 petition.*fn1 Appeal No. 2119 C.D. 1982. The William Penn Hotel (employer) and its insurer, Commercial Union Insurance Co., have cross-appealed the Board's decision to award benefits for the aggravation of the pre-existing condition. Appeal No. 2182 C.D. 1982. These appeals were consolidated for disposition.

[ 79 Pa. Commw. Page 99]

The claimant had filed two claim petitions. The February 9 petition alleged that she had fractured her wrist at work on January 11, 1979 while attempting to kill a rat. In the November 27 petition, she alleged that a pre-existing condition had been aggravated by her exposure to cleaning fluids used in the course of her employment. Following the referee's decision which denied benefits for the wrist fracture but awarded benefits for aggravation of a pre-existing granuloma, both the claimant and the employer appealed to the Board which, in turn, remanded for clarification of the referee's findings.*fn2 At this point, the two claim petitions were consolidated, and additional evidence was heard by the referee who then resubmitted similar findings and an identical order to the Board. The Board affirmed the referee's decision to dismiss the wrist fracture claim (February 9 petition) and to award benefits for the aggravation of the pre-existing granuloma (November 27 petition). The present cross-appeals followed.

Our scope of review in a workmen's compensation case where the party with the burden of proof, here the claimant, did not prevail below and where the Board took no additional evidence is limited to a determination of whether or not the referee as fact-finder capriciously disregarded competent evidence, leaving to the referee questions of credibility and the resolution of conflicts in testimony. Cooper v. Workmen's Compensation Appeal Board, 49 Pa. Commonwealth Ct. 488, 411 A.2d 859 (1980).

[ 79 Pa. Commw. Page 100]

With regard to the February 9 claim petition, the referee found that "[s]ometime during the period from October, 1978 to January 19, 1979, claimant fractured her left wrist; but the said injury was not sustained in the course of her employment with employer, nor was it related thereto." The claimant argues that the referee capriciously disregarded competent evidence when he held that the wrist fracture did not occur in the course of employment. She testified before the referee that she injured her wrist at work on January 11, 1979. She presented no corroborating testimony, the referee obviously chose not to believe her testimony,*fn3 and, it is a well-established principle that the referee may disbelieve a witness' testimony even in the absence of contradictory evidence. Zander v. Workmen's Compensation Appeal Board (Warrington Equipment Co.), 68 Pa. Commonwealth Ct. 412, 449 A.2d 784 (1982).

The claimant argues alternatively that her wrist, weakened by her granuloma condition, fractured.*fn4 Where, as here, no obvious causal connection exists between a claimant's injury (fractured wrist) and the alleged cause (granuloma), the claimant must offer unequivocal medical testimony to establish the causal relationship. Porochniak v. Workmen's Compensation Appeal Board, 67 Pa. Commonwealth Ct. 368, 447 A.2d 346 (1982). We held recently in Philadelphia College of Osteopathic Medicine v. Workmen's Compensation Appeal Board (Lucas), 77 Pa. Commonwealth Ct. 202,

[ 79 Pa. Commw. Page 101465]

A.2d 132 (1983) that "unequivocal medical testimony" is expert medical testimony that the claimant's "condition . . . did [in fact] come from the work experience." Id. at 206, 465 A.2d at 134 (emphasis added). We also held there that the medical expert's testimony need not be without any reservation but is sufficient if the testimony consists of competent evidence which will, if accepted by the fact-finder, support an award. Id. In the case sub judice, however, the claimant's expert medical witness, Dr. Howard T. Phillips, an orthopedic surgeon, testified that lesions or granuloma could be an indirect cause of the fracture inasmuch as the claimant, due to the granuloma, would not use her left wrist and the bone would, therefore, weaken and fracture more easily. He also stated that the granulous condition was not in his field of expertise and that he did not know if the lesions or granuloma were the cause of the fracture.*fn5

As to the petition filed on November 27, the referee found: that the claimant had a pre-existing infection or inflammation (granuloma) on her left wrist;

[ 79 Pa. Commw. Page 102]

    that she remained able to perform her job as a seamstress with the employer despite the granuloma; that, on September 25, 1978, the employer reassigned her to duties as a cleaner; that she regularly used cleaning fluids in her new position; that, in October of 1978 she suffered an aggravation or reactivation of the granuloma; that this aggravation resulted from contact with and exposeure to dust and cleaning fluids in her work as a cleaner; that she continued to work until April 18, 1979 when she was hospitalized and had surgery for an ulnar nerve palsy of the left wrist; that she was totally disabled from April 18, 1979 through September 20, 1979 following this surgery; and that she suffered no loss of earning power as of September 20, 1979.

Inasmuch as the claimant, who had the burden of proof, prevailed before the referee with regard to the November 27 petition and the Board took no additional evidence, our scope of review is limited to determining whether or not constitutional rights have been violated, errors of law have been committed, or necessary findings of fact are unsupported by substantial evidence. Rowan v. Workmen's Compensation Appeal Board, 58 Pa. Commonwealth Ct. 56, 426 A.2d 1304 (1981).

The employer argues here that the record does not contain substantial evidence in support of the referee's finding that the claimant was totally disabled as a result of the aggravation of claimant's pre-existing granuloma. More specifically, it contends that the claimant failed to prove by unequivocal medical testimony that the admittedly aggravated granuloma condition led to the ulnar nerve palsy and to her consequent total disability.*fn6 Keeping in mind our recent

[ 79 Pa. Commw. Page 103]

    holding as to the phrase "unequivocal medical testimony" in Philadelphia College of Osteopathic Medicine, we note that, although two expert medical witnesses testified on behalf of the claimant neither was asked nor did either state whether or not the aggravation of the claimant's granuloma caused the ulnar nerve palsy to her left wrist. We must conclude, therefore, that the claimant did not meet her burden of proof*fn7 for she did not present any medical evidence as to the causal relationship between the aggravated granuloma and the ulnar nerve palsy for which she underwent surgery.*fn8 The referee's finding that the aggravation resulted in claimant's total disability following surgery, therefore, was not based on substantial evidence and must be reversed.

Having found that the claimant did not suffer any compensable disability, we need not address her argument that the referee's determination concerning the length of her total disability was not based on substantial evidence.

Accordingly, we will affirm the Board's denial of benefits for the claimant's fractured wrist and reverse the Board's award of benefits for total disability due to the aggravated granuloma.

Order

And Now, this 14th day of December, 1983, the order of the Workmen's Compensation Appeal Board in No. 2119 C.D. 1982 is affirmed.

[ 79 Pa. Commw. Page 104]

Order

And Now, this 14th day of December, 1983, the order of the Workmen's Compensation Appeal Board in No. 2182 C.D. 1982 is reversed.

Disposition

Order in 2119 C.D. 1982 affirmed. Order in 2182 C.D. 1982 reversed.


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