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ERNEST ROTH LEWIS v. COMMONWEALTH PENNSYLVANIA (09/24/85)

decided: September 24, 1985.

ERNEST ROTH LEWIS, APPELLANT
v.
COMMONWEALTH OF PENNSYLVANIA, WORKMEN'S COMPENSATION APPEAL BOARD, AND PITTSBURGH BOARD OF EDUCATION, APPELLEES



No. 61 W.D. Appeal Dkt. 1984 Appeal from the Order of the Commonwealth Court of Pennsylvania entered March 8, 1984 at No. 2046 C.D. 1982, affirming the Order of the Workman's Compensation Appeal Board at No. A-80980, Nix, C.j., and Larsen, Flaherty, McDermott, Hutchinson, Zappala and Papadakos, JJ. Larsen, J., files a dissenting opinion.

Author: Mcdermott

[ 508 Pa. Page 362]

OPINION

This is an appeal from the Commonwealth Court's affirmance of the Workmen's Compensation Appeal Board's reversal of a referee's decision awarding compensation to the appellant, 80 Pa. Commw. 640, 472 A.2d 1176. The issue concerns the standard of review to be applied to a referee's determination of causation in cases where a claimant must establish a link between his medical condition and a work-related incident.

Appellant's workmen's compensation claim was based on injuries allegedly arising from a work-related incident occurring

[ 508 Pa. Page 363]

    while employed by the Pittsburgh Board of Education as a physical education teacher. While moving gym equipment during a scheduled in-service day in August 1979, appellant felt a sharp pain in the back of his neck. He was hospitalized five days later. Five days thereafter, he was transferred to another hospital where he was placed under the care of Dr. Narayan Nayak, a neurosurgeon. Dr. Nayak diagnosed appellant as suffering from cervical spondylosis with a root comprehension syndrome. He performed an anterior cervical discetomy and iliac graft fusion upon appellant. Appellant was absent from his job from September 4, 1979 to October 29, 1979.

At the referee's hearing, appellant testified that he first experienced problems with his neck when he sustained a football injury at college in 1966. He suffered discomfort and pain in his neck on an intermittent basis since that time. Appellant also testified that at the time of his alleged injury he was a football coach at a local parochial high school unassociated with the Pittsburgh School District.

In lieu of live medical testimony appellant had a deposition of Dr. Nayak admitted into evidence.*fn1 At the deposition claimant's counsel recited, in hypothetical terms, the appellant's medical history pertinent to his disability, including the incident at school. He then asked whether under those circumstances the neck condition was related to the incident occurring in the course of claimant's employment. Dr. Nayak answered:

Though we do not have a definite record of the injury, I assume this particular episode which you mentioned could have been directly or indirectly could have been the cause of his problem. At the time of surgery, there were extruded cartilages found which confirms this probably was an acute aggravating situation and was responsible for his root compression syndrome.

[ 508 Pa. Page 364]

On cross-examination Dr. Nayak was asked to read the following from a medical report he issued to claimant's attorney:

The clinical history was suggestive of long standing ongoing process of spondylosis with root compression syndrome. As far as we know, the history of evolution of this kind of problem is chronic, persistent, mild trauma which may be aggravated by mild trauma or the normal aging process of the spine which may be aggravated by the repeated trauma.

Since this man is involved in football coaching, I believe he would be exposed to repeated trauma to the neck and could be responsible for aggravation of this problem.

Further cross-examination followed:

Q. Is it also a possibility, Doctor, that the normal aging process of the spine which you have alluded to in this particular paragraph, is it also possible that that normal aging process could have gotten progressively worse to the point where he would need this particular operation which you performed upon him?

A. Yes.

Q. Then additionally as you have already stated in the [medical report], it is also possible that when he was involved in coaching football, that the traumas that are associated with that type of activity, that could have ...


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