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PHILADELPHIA ELECTRIC COMPANY v. WORKMEN'S COMPENSATION APPEAL BOARD (RUTTER) (07/02/86)

decided: July 2, 1986.

PHILADELPHIA ELECTRIC COMPANY, PETITIONER
v.
WORKMEN'S COMPENSATION APPEAL BOARD (RUTTER), RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board, in case of Robert Rutter v. Philadelphia Electric Company, No. A-84751.

COUNSEL

Thomas F. McDevitt, Thomas F. McDevitt, P.C., for petitioner.

Michael M. Goss, Weinstein, Goss, Katzenstein & Schleifer, for respondent, Robert Rutter.

President Judge Crumlish, Judge Barry, and Senior Judge Blatt, sitting as a panel of three. Opinion by Judge Barry.

Author: Barry

[ 98 Pa. Commw. Page 480]

This is an appeal by petitioner, Philadelphia Electric Company, from an order of the Workmen's Compensation Appeal Board (Board) approving the referee's grant of benefits to claimant/respondent, Robert Rutter, on the basis that his back injury was an aggravation of a pre-existing, work-related injury.

Claimant was a mechanical assistant employed by petitioner since February of 1954. He alleges that on Wednesday, January 22, 1980, while changing a battery, he twisted his back. He worked the next two days but on the evening of January 24, lay down on a sofa in his home and was unable to get up due to the excruciating pain in his back. He was scheduled to work on Saturday, January 25, 1980, the following day, but called off. He never reported to work again. He underwent fusion surgery in March of 1980 and June of 1980.*fn1 The referee

[ 98 Pa. Commw. Page 481]

    found that the official diagnosis was multiple degenerative spondylosis of the lumbar spine particularly at L-4, L-5, due to degenerative changes aggravated by multiple injuries at work over a long period of time back to 1965. The referee also found that as a result, claimant wears a back brace, cannot walk short distances without resting, cannot drive and is on medication for pain and depression. Dr. Paul M. Lin, M.D., a surgeon who performed the 1980 operations, had treated claimant since 1965, and performed surgery on claimant in 1966 and 1971 for recurrent back problems. The record shows that claimant complained of back pains from 1966 through his operations in 1966, 1971 and 1980 until presently.

The following are the relevant conclusions drawn by the referee:

1. Claimant sustained a compensable injury on January 22, 1980 by:

     a. suffering an aggravation of pre-existing work-related injuries originally sustained in 1965. The incident of January 22, 1980, superimposed upon the back condition caused by these prior injuries caused his present symptomology. Beaver Supermarket v. Workmen's Compensation Appeal Board, 424 A.2d 1023 (Commonwealth Court 1981) or;

     b. the arduous physical demands on his job and frequent traumas caused by his requirements of reaching, bending and lifting caused his present disability.

The Board affirmed the referee's decision but in a separate opinion emphasized that Dr. Lin's testimony did not unequivocally establish that the battery-lifting incident was the cause of claimant's injuries. The Board found that Dr. Lin did establish the injury as work-related when he unequivocally testified that the repetitive

[ 98 Pa. Commw. Page 482]

    traumas of claimant's work duties over the years caused these injuries. In addition, the Board found that employer was entitled to a credit for full wages received by claimant and paid by employer during the period from January 25, 1980 until February 1, 1981. The Board denied the employer's request that a credit be given for benefits paid by a Beneficial Association in the amount of $413.00 per ...


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