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filed: November 29, 1985.


No. 00024 Pittsburgh 1985, Appeal from the Judgment of the Court of Common Pleas of Potter County, Civil at No. 371-1982.


James H. Devittorio, Ridgway, for appellant.

Olszewski, Popovich and Montgomery, JJ.

Author: Popovich

[ 349 Pa. Super. Page 382]

This is an appeal from the order of the Court of Common Pleas of Potter County, later reduced to judgment, in favor of Leo M. Bundy, appellee, and against National Safety Life Insurance Co., appellant, in the principal amount of $7,213.15 plus interest. We affirm and modify.

The facts, viewed in a light most favorable to the verdict-winner and drawing all reasonable inferences therefrom, reveal that on March 7, 1980 Mr. Bundy sustained a head injury (commonly referred to as "whip-lash") when the vehicle he was driving struck another vehicle broadside.

Mr. Bundy filed proof of loss with his insurance carrier/appellant, claiming that he was "wholly and continuously disabled". With the filing of such documents, the insurer made payments for the following periods of disability: March 9-31, 1980; April 1 -- June 1, 1980; and June 2 -- September 4, 1980. Thereafter, National terminated payment of benefits upon learning from a Dr. Li that Bundy had been "released to return to work" as of September 4, 1980.

However, because the stress of hauling 80-100 pounds of gun powder up a flight of stairs caused a re-occurrence of Bundy's headaches and neck pains, the job which Bundy

[ 349 Pa. Super. Page 383]

    was able to secure lasted no longer than 4 hours. The same inability to carry heavy objects precluded the claimant from returning to his job as "parts-runner" with Givens' junkyard -- the position he held at the time of the accident.

With the aid of counsel, Bundy submitted a supplemental claim on August 27, 1982 seeking reinstatement of his disability benefits beginning with March 18, 1981 to August 17, 1982. Attached to the claim were two documents. The first, captioned "Attending Physician's Supplementary Report", was filled out by a Dr. Chaudhuri, who wrote that, based on some 12 monthly office visits starting on 6/18/81 for treatment, his patient (Bundy) was totally disabled from performing any duties of his employment "from 3/18/81 to unknown".

The second writing was authored by a Dr. A.B. King. He suspected, based on the manner in which Bundy sustained injury -- striking his head against the windshield and breaking it -- that damage to the cervical spine (discs C5 and C6) had occurred since the pulling of a "lot of ligaments is not at all surprising." Given that Bundy's symptoms had lasted so long they tend to become chronic and go on for years, according to Dr. King. Thus, he advised that Bundy be evaluated further and "corrective measures [be] undertaken when discovered".

By letter dated September 9, 1982, National denied Bundy's request for additional benefits on the grounds that his return to work, when coupled with the fact that he did not commence seeing Dr. Chaudhuri until June 18, 1981, violated the policy of insurance, which required that one be "wholly and continuously disabled", confined to one's immediate premises and be regularly visited by a physician.

Bundy reacted by filing a complaint alleging, as is herein relevant, that National had breached its contract of insurance in failing to honor his claim for benefits "from September 5, 1980 to and including August 17, 1982". Thereafter, National filed a response in the form of an Answer and New Matter. Therein, National would admit to no more than that Bundy's injuries rendered him "wholly and continuously

[ 349 Pa. Super. Page 384]

    disabled from the date of the said accident . . . up and through September 4, 1980" and not thereafter. If Bundy was still convalescing, National contended, "such alleged disability was not of such [a] nature so as to be compensible [sic] under the terms of [the] . . . contract of insurance". (Paragraph 6)

National expressly denied, in paragraph 11, that Bundy had submitted proper proof of entitlement to benefits for the period in question, and, in paragraph 14, asserted that the complaint was the first it learned of the claim.

Under New Matter, National stated that it ceased making payments to Bundy upon learning from his physician (Dr. Li) that he had been certified to go back to work, and that from October 22, 1980 until August 27, 1982, Bundy presented no proof of loss. Thus, National argued, Bundy had not presented any documentation warranting the payment of any claim and that Bundy's inaction from the date of the last payment (October 22, 1980) constituted a waiver of his right to seek now additional benefits.

In his "Reply", Bundy asserted that he had provided proper documentation to National to recover for his disability, and that he had not acquiesced to the denial of his claim by failing to object thereto. Also, Bundy noted that he did return to work subsequent to receiving certification from his doctor, however this did not take place after the alleged final payment from National.

At the time set for the non-jury trial, Bundy recalled how he sustained a head injury in March of 1980 in an automobile collision, that his neck and shoulder began to bother him thereafter and that his right arm became numb so as to prevent him from gripping objects with any force. He also complained of getting headaches 2 or 3 times a week, that sometimes they lasted 3 or 4 days and were brought on either with a quick movement of his head or for no apparent reason. They were so severe, Bundy stated, that he would rub his head until blood came out in an effort to relieve the pain. Another symptom of the injury was the enduring of

[ 349 Pa. Super. Page 385]

    back pains by Bundy so "fierce" that they brought tears to his eyes if he had to "even straighten up".

Bundy's typical day, as far as what physical exertion he engaged in, consisted of, as stated by him:

I sit and watch t.v., I get up and walk around the house, go and visit my neighbors, go outside and walk around outside, watch the kids feed their animals.

Any physical work around the house is performed by his step-son or he has to hire others to do things for him. Bundy complained that if he tried to bend or stoop he becomes "dizzy", and on two occasions he fell from bending over and injured his ribs. The witness has experienced neck problems if he sleeps improperly or misjudges a step. He experiences "terrific headache[s] and it bothers [his] neck something fierce [to the point where he] don't get no sleep at all."

Bundy also remarked that his neck snaps since the accident. This causes him pain and is "getting worse and worse as it goes along. It is happening more to [him] now than it did back in 1980."

Bundy went on to recount that his inability to read or write and his 7th grade education relegated him to a 20-year work history, although varied, consisting of driving trucks, junk hauling, tool polishing, maintenance work and other unskilled jobs, all of which required heavy lifting, stooping and bending. Thus, he had not sought work, other than at the Joyce Power Co., since the accident on the recommendation of a Dr. Chaudhuri. Bundy's wife confirmed her husband's testimony.

The testimony of Dr. Chaudhuri (a consulting orthopedic surgeon at Charles Cole Memorial Hospital in Coudersport, Pa.), along with that of a Dr. Mosch (a board certified family practitioner and a member of the staff of Charles Cole Memorial Hospital), was presented in deposition form to the trial court.

On three of the six occasions when Dr. Mosch saw Bundy, i.e., October 27, November 4 and ...

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