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WILLIAM P. LAUGHLIN AND FIREMAN'S FUND INSURANCE CO. v. WORKMEN'S COMPENSATION APPEAL BOARD (HUSKA) (09/02/87)

decided: September 2, 1987.

WILLIAM P. LAUGHLIN AND FIREMAN'S FUND INSURANCE CO., PETITIONERS
v.
WORKMEN'S COMPENSATION APPEAL BOARD (HUSKA), RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in the case of Helen Huska v. William P. Laughlin, No. A-89603.

COUNSEL

Mark Gordon, with him, Daniel D. Harshman, Meyer, Darragh, Buckler, Bebeneck & Eck, for petitioners.

John A. Clay, for respondent.

Judges Craig and Barry, and Senior Judge Blatt, sitting as a panel of three. Opinion by Judge Blatt.

Author: Blatt

[ 109 Pa. Commw. Page 129]

This is an appeal by William P. Laughlin (employer) and his insurance carrier from an order of the Workmen's Compensation Appeal Board (Board) which affirmed a referee's decision to award benefits to Helen Huska (claimant) for the period from February 25, 1983 through September 18, 1983, to grant a suspension of those benefits commencing September 19, 1983, and to deny the claimant's request for reinstatement and modification. There is no cross appeal.

The referee found that the claimant, an office secretary, fell at work on November 4, 1982. She subsequently experienced severe low back pain which radiated down her right leg, and she was later diagnosed as having a herniated disc. The referee also found that the various medical histories in evidence contained conflicting testimony as to the date of the claimant's injury. The fact of a fall, however, is not disputed nor is it disputed that this fall occurred in the presence of the claimant's employer. Additionally, the claimant testified that, while she experienced no immediate pain upon falling, she did hear a "pop" or "snap", and that, about two or three weeks later, she first experienced pain in her abdomen, right buttock, thigh and leg.

The claimant's doctor, John G. Phillips, M.D., testified in direct evidence that, based upon the injury the claimant described as to "the twist, the pop, the radiation of pain", he concluded that her condition was due to her fall. On cross-examination, he was asked, in summary, if his opinion would be different if it were shown that the claimant had complained of pain prior to her

[ 109 Pa. Commw. Page 130]

    fall. His answer was "well, possibly." Evidence was thereafter introduced to the effect that, approximately two months before her fall at work, the claimant had seen a doctor regarding a complaint of similar pain. Additionally, he was advised that the claimant, beginning in September, had been sitting under an air conditioning register at work and that, from that point on, she "just didn't feel too good." When asked if these facts would cause him to alter his opinion as to the etiology of the claimant's pain, Dr. Phillips replied, "not really, because it is a very vague symptom and lots of people have back pain when they sit under an air conditioner." He further explained that the claimant's post-November complaint of leg pain is the type of symptom usually associated with a disc problem. He also testified that an interlude between a fall and pain does not necessarily make a physician less certain that the symptoms are related to the fall. Counsel for the employer concluded his cross-examination with the following, unobjected-to, hypothetical question:

[T]hat she is not really sure when she had this episode at work, but she felt the pop, but doesn't know where the pop was, but she didn't have pain for two to three, or maybe even four weeks after whatever the injury or episode at work was. I want you to also assume that the records will show she had symptoms in September. Now, Doctor, are you able to now state with [sic] reasonable degree on [sic] medical certainty that she sustained a ruptured disc on November 4?

Dr. Phillips responded to this hypothetical question as follows: "If the history that I take to base my opinion on is this history, no." The referee made a specific finding based ...


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