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RUSSEL D. HEATH v. WORKMEN'S COMPENSATION APPEAL BOARD (AGWAY (09/16/86)

decided: September 16, 1986.

RUSSEL D. HEATH, PETITIONER
v.
WORKMEN'S COMPENSATION APPEAL BOARD (AGWAY, INC.), RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board, in case of Russel D. Heath v. Agway, Inc., No. A-88273.

COUNSEL

William H. Poole, Jr., McCullough & Poole, for petitioner.

Mark Woodbury, III, for respondent, Agway, Inc.

Judges Craig and Doyle, and Senior Judge Barbieri, sitting as a panel of three. Opinion by Judge Doyle.

Author: Doyle

[ 100 Pa. Commw. Page 524]

Russel D. Heath (Claimant) appeals from a decision of the Workmen's Compensation Appeal Board (Board)

[ 100 Pa. Commw. Page 525]

    which affirmed a referee's decision denying Claimant benefits for failure to establish a causal connection between his work and his injury.

On February 4, 1983, Claimant discovered a lump in his abdomen while bathing at home. This lump was later diagnosed by his physician, Dr. Edward Garber, as a ventral hernia. Claimant had suffered two similar hernias in 1981 and 1982, each of which had occurred during strenuous activity in the course of his employment with Agway, Inc. In the present case, Claimant was unable to connect his injury with any specific incident. All three hernias were located in approximately the same area of Claimant's abdomen. This was also the same area in which Claimant had undergone abdominal surgery for an abcess or infection in 1971. Dr. Garber performed the reparative surgery for all three of Claimant's hernias, but not for the 1971 infection.

At the referee's hearing in this case, Claimant presented extensive deposition testimony by Dr. Garber concerning the nature and cause of Claimant's injury. The referee concluded that this testimony was equivocal on the issue of causation, and accordingly denied benefits. Claimant appealed to the Board which affirmed the referee's decision. He now appeals to this Court contending that both the Board and the referee erred as a matter of law in concluding that Dr. Garber's testimony was equivocal.

In addition to the facts recited above, the referee made the following findings:

7. Dr. Garber testified that he was unable to say whether or not the Claimant's work activities including the heavy lifting which he performed as part of his ...


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