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MATLACK v. WORKMEN'S COMPENSATION APPEAL BOARD (ZWALD) (06/19/85)

decided: June 19, 1985.

MATLACK, INC., PETITIONER
v.
WORKMEN'S COMPENSATION APPEAL BOARD (ZWALD), RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in the case of Ralph Zwald, Jr. v. Matlack, Inc., No. A-81163.

COUNSEL

Richard L. Rosenzweig, for petitioner.

Alexander J. Pentecost, with him, Amiel B. Caramanna, Jr., for respondent, Ralph Zwald.

Judges MacPhail and Colins and Senior Judge Blatt, sitting as a panel of three. Opinion by Judge MacPhail.

Author: Macphail

[ 90 Pa. Commw. Page 197]

Matlack, Inc. (Petitioner) appeals here the order of the Workmen's Compensation Appeal Board (Board) which affirmed a referee's decision dismissing Petitioner's modification petition.

On July 30, 1976, Ralph Zwald (Claimant) was involved in a work-related accident in which he suffered a head injury. Claimant received compensation pursuant to a notice of compensation payable. Claimant returned to work on December 6, 1976, and signed a final receipt on December 21, 1976.

On December 30, 1976, Claimant underwent treatment for a pre-existing hernia condition. On March 4, 1977, Claimant filed a petition for review which was amended to a Petition to Set Aside a Final Receipt. On January 14, 1978, Claimant was involved in a non-work related accident. On March 14, 1979, a referee set aside the final receipt, having found that at the time Claimant signed the final receipt, Claimant was still disabled on the basis of an eye condition which had been aggravated by the July 30, 1976 accident. On appeal, the Board affirmed the referee's decision. Petitioner did not appeal from the Board's decision.

Petitioner filed a modification petition on September 21, 1979, alleging that work was available for Claimant to perform. Hearings were held in which Petitioner presented the testimony of various vocational experts who testified that employment was available to Claimant, taking into account Claimant's physical limitations caused by the eye injury. Claimant and his medical witness, Dr. Owen Black, presented testimony to the effect that Claimant also suffered from vertigo, a condition rendering Claimant

[ 90 Pa. Commw. Page 198]

    totally disabled for any employment. Dr. Black, deposed, testified that Claimant had sustained post-traumatic damage to the inner ear as a result of the July 30, 1976 compensable injury. The referee specifically found the testimony presented by Claimant and Dr. Black more credible than the testimony presented by Petitioner, and dismissed Petitioner's modification petition. The Board affirmed and this appeal followed.

To be eligible for workmen's compensation benefits, a claimant must prove that his injury arose in the course of his employment and was related thereto. Halaski v. Hilton Hotel, 487 Pa. 313, 409 A.2d 367 (1979). Petitioner maintains that Claimant's inner ear injury resulted from the non work-related accident. We have previously held that injuries unrelated to a claimant's job are compensable if they are the proximate or the natural and probable result of a prior work-related injury. GTE Sylvania v. Workmen's Compensation Appeal Board (Lydon), 73 Pa. Commonwealth Ct. 618, 458 A.2d 1050 (1983):

When there is an intervening non-work injury, claimant must then prove that his resultant disability was so immediately and directly connected with the prior work-related injury that it would naturally and probably result therefrom; that is to say, that the first ...


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