DiJoseph v. Workmen's Compensation Appeal Board

563 A.2d 598, 128 Pa. Commw. 359, 1989 Pa. Commw. LEXIS 591
CourtCommonwealth Court of Pennsylvania
DecidedAugust 30, 1989
DocketNos. 1298 and 1300 C.D. 1988
StatusPublished
Cited by3 cases

This text of 563 A.2d 598 (DiJoseph v. Workmen's Compensation Appeal Board) is published on Counsel Stack Legal Research, covering Commonwealth Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
DiJoseph v. Workmen's Compensation Appeal Board, 563 A.2d 598, 128 Pa. Commw. 359, 1989 Pa. Commw. LEXIS 591 (Pa. Ct. App. 1989).

Opinion

BARBIERI, Senior Judge.

Before the Court are cross appeals from the decision and order of the Workmen’s Compensation Appeal Board which [361]*361affirmed an award for total disability for injuries suffered by Claimant, Susan DiJoseph, while in the employ of St. Christopher’s Hospital for Children, Employer. Claimant in her appeal asserts that the Board erred in reversing the referee’s assessment of her counsel’s fees against Employer and in reducing the beginning date of compensation from the date of injury, January 13, 1983, as fixed by the referee, to March 25, 1983, on the basis that no notice of injury was given to Employer1 except by the Claim Petition which was mailed from the Bureau on the latter date. Employer, in its appeal contends that the Board erred in affirming the referee’s award to Claimant in reimbursement of the Nazareth Hospital bill in the amount of $5,395.55, whereas that bill had been paid by a Blue Cross/Blue Shield coverage supplied by Employer.

The referee’s findings are that Claimant was injured while employed by St. Christopher’s Hospital for Children as a child care worker on January 13, 1983 when she was required on that date to do some heavy lifting. The referee’s relevant findings are as follows:

3. Claimant’s job as a child care worker required her to lift and carry children who weighed up to 50 pounds on a daily basis, often carrying the children up and down stairs. She did this from April 1974 through January, 1983.
4. On January 13, 1983 Claimant was toilet-training a little girl which required the Claimant to carry the little girl up two flights of stairs to the bathroom, 6 or 7 times during that day; and once in the bathroom, the Claimant had to bend over the child to help the child dress and undress, and to hold the child on a small potty chair.
5. After a full workday Claimant had developed a backache on January 13, 1983.
[362]*3626. The Claimant had experienced backaches before from lifting children at work, but her backache which began on January 13, 1983 did not go away, but got worse; and by the next day she also had an excruciating pain in her left leg.
7. Claimant’s condition worsened over the next several days, and on January 20, 1983 she went to Nazareth Hospital on the advice of her family doctor, Angelo DiBello, M.D.
8. At Nazareth Hospital, the Claimant came under the care of a Neurosurgeon, Paul Lin, M.D., who diagnosed her condition as a herniated Disc, L-5, after performing a lumbar meylogram.
9. Dr. Lin performed surgery on January 22, 1983 at Nazareth Hospital in the nature of a discectomy and nerve compression, L-5.
10. As a result of the injury which she suffered on January 13, 1983, the Claimant has lost her ability to control her bladder and bowel movements, and she can only urinate by catheter; which required self-catherization with a plastic catheter six to ten times a day, every day.
11. Since her injury and surgery, the Claimant has experienced several embarassing [sic] accidents which occurred when her bowels empties uncontrollably, without warning, causing waste to run down her legs. She cannot feel this happening because since her injury she is permanently numb in the areas of her buttocks, anus and vaginal region.
12. A Board Certified Neurosurgeon, Lawrence Kerson, M.D., testifies on behalf of Claimant that her herniated disc and subsequent surgery were caused by the kind of lifting and bending that she did with children while working for St. Christopher’s Hospital for Children; and that Claimant is disabled by that injury, and by her ongoing bowel and bladder dysfunctions which are caused by a neurological component of the work-related disc injury.
[363]*36313. Due to problems she was having dealing with her condition, the Claimant came under the care of Licensed Clinical Psychologist Dr. Sherri Landes.
14. Dr. Landes testified on behalf of Claimant that Susan DiJospeh suffers from a psychological disorder, an adjustment disorder with mixed emotional features; and that the Claimant’s psychological disorder was caused by the injury of January 13, 1983, and is totally disabling.
15. The Claimant has been unable to return to work of any kind since January 13, 1983, due to her disc injury and her bowel and bladder disfunctions.
18. The Defendant employer has not presented any evidence to contest the occurrence of an injury at work on January 13, 1983.
19. The Defendant employer did not present any medical evidence except the deposition testimony of Charles Winkelman, who examined the Claimant on October 3, 1983, almost nine full months after the accident of January 13, 1983; and the testimony [sic] of Psychiatrist Wolfram Reiger, who examined the Claimant on December 9, 1985, almost three full years after the accident of January 13, 1983.
20. The Defendant employer has failed to establish any reasonable basis to contest Susan DiJoseph’s claim.

The referee’s Conclusions of Law in support of his decision and award are the following:

1. Claimant, Susan DiJoseph, suffered a work-related herniated disc on January 13, 1983 while in the employment of St. Christopher’s Hospital for Children.
3. The Defendant employer received proper notice of Claimant’s injury, consistent with the Pennsylvania Workmen’s Compensation Act.
4. The Defendant Employer wrongfully denied the Workmen’s Compensation Claim of Susan DiJoseph, and [364]*364has failed to establish any reasonable basis to contest her Claim.
5. The Claimant has been totally disabled since January 13, 1983, and will remain so indefinitely into the future within the meaning and confines of the Pennsylvania Workmen’s Compensation Act.
On appeal to the Board the following order was entered:
ORDER
Defendant’s appeal is granted in part and denied in part. Referee Stevenson’s decision and order are affirmed except that the order awarding Claimant’s counsel fees to be paid by Defendant is reversed and the compensation payable should become effective March 25, 1983, and not January 13, 1983. All other aspect [sic] of the order are affirmed.

First, as to the action of the Board in reversing the referee’s order that Claimant’s counsel fees be paid by Employer, we feel constrained to affirm, at least in part, this decision by the Board. While we must agree with the Claimant that Employer had no basis for contest at the outset, we must also recognize that the extent of disability is a proper and reasonable basis for contest when implemented by acceptable testimony, a result supported, as the Board noted, by our decision in Chmiel v. Workmen’s Compensation Appeal Board, 65 Pa. Commonwealth Ct. 310, 442 A.2d 398 (1982). We decline to honor the request of Claimant’s counsel that we overrule Chmiel in light of our holding in

Free access — add to your briefcase to read the full text and ask questions with AI

Related

General Electric Co. v. Workers' Compensation Appeal Board
737 A.2d 852 (Commonwealth Court of Pennsylvania, 1999)
Pennsylvania Mines Corp. v. Workmen's Compensation Appeal Board
646 A.2d 28 (Commonwealth Court of Pennsylvania, 1994)

Cite This Page — Counsel Stack

Bluebook (online)
563 A.2d 598, 128 Pa. Commw. 359, 1989 Pa. Commw. LEXIS 591, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dijoseph-v-workmens-compensation-appeal-board-pacommwct-1989.