Fesh v. American Steel & Wire Division, United States Steel Corp.

286 A.2d 10, 4 Pa. Commw. 84, 1972 Pa. Commw. LEXIS 535
CourtCommonwealth Court of Pennsylvania
DecidedJanuary 5, 1972
DocketAppeal, No. 425 C.D. 1971
StatusPublished
Cited by6 cases

This text of 286 A.2d 10 (Fesh v. American Steel & Wire Division, United States Steel Corp.) 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
Fesh v. American Steel & Wire Division, United States Steel Corp., 286 A.2d 10, 4 Pa. Commw. 84, 1972 Pa. Commw. LEXIS 535 (Pa. Ct. App. 1972).

Opinion

Opinion by

Judge Mencer,

This is an appeal from an order of the Court of Common Pleas of Washington County, Pennsylvania, remanding the consolidated workmen’s compensation claims of Helen Fesh (claimant) and her husband, Stephen Fesh (decedent) to the Workmen’s Compensation Board (Board) for further testimony concerning whether or not an accident at work on October 17, 1962 aggravated or accelerated a disease which caused decedent’s death on May 22, 1965.

Both claims arise out of an accident on October 17, 1962 sustained by decedent while employed by the American Steel and Wire Division of the United States Steel Corporation (Company). Decedent’s claim is a petition to set aside a final receipt; that of the claimant, his wife, is a claim for death benefits.

On October 17, 1962, decedent, Stephen Fesh, was employed by the Company as an end trimmer and bundler in the rod mill. On that date a hose filled with vacuum oil burst and in an attempt to back quickly away Mr. Fesh tripped and fell, landing on his back in a pile of dirt.

He returned to work until he complained of pain in his right ankle, at which time he was sent to the plant infirmary to see Dr. MacLane. He continued to see Dr. MacLane during a two-week period when he was laid off. After his return to Avork he was assigned to a less strenuous job. It was discovered that he had sustained a fracture to his right ankle and a walking cast was applied.

He continued to work at light jobs when there was scheduled work; when there Avas no work scheduled, he received unemployment compensation. After four [86]*86weeks the cast was removed. Mr. Fesh complained of weakness in his legs, so the Company arranged for him to see Dr. Stuart Rowe, a neurosurgeon, in December, 1962. Dr. Rowe referred Mr. Fesh to Dr. Joseph Novak at St. Francis Hospital for extensive testing. At the conclusion of these tests, both doctors agreed that Stephen Fesh was suffering from amyotrophic lateral sclerosis.

On January 31, 1963, Mr. Fesh entered into an agreement with the Company for compensation for disability caused by the accident and executed a final receipt acknowledging that he was no longer disabled as the result of the accident.

After January 31, 1963, his condition worsened and Mr. Fesh lost the use of Ms legs and then his arms, finally becoming totally disabled.

On August 19, 1963, claimant filed a modification petition and a petition to set aside the final receipt, alleging that all disability due to the accident of October 17, 1962 had not terminated.

The first hearing in this matter was held February 4, 1984. Other hearings were held on June 29, 1967, October 29, 1968, and April 17, 1969.

Stephen Fesh died on May 22,1965. The death certificate was signed by one of claimant’s medical witnesses, Dr. Rongaus, and listed amyotrophic lateral sclerosis as the cause of death.

At the conclusion of all the testimony, the Referee found that the decedent, Mr. Stephen Fesh, had died as a result of amyotrophic lateral sclerosis and that there was no causal connection between that disease and the October 17,1962 accident. He dismissed the claimant’s and the decedent’s petitions.

An appeal from the Referee’s decision was taken to the Pennsylvania Workmen’s Compensation Board. On June 18, 1970, the Board affirmed the Referee’s find[87]*87ings of fact, conclusions of law and orders dismissing the petitions.

On appeal to the Court of Common Pleas of Washington County, the Court acknowledged that it was bound by the Board’s finding that the decedent died of amyotrophic lateral sclerosis, but remanded the petitions to the Board to afford claimant the opportunity to prove that the accidental injury aggravated his disease. This appeal is taken from that order.

The question before this Court is whether the Court of Common Pleas acted improperly in remanding the petitions to the Board.

We must reverse. In Rizzo v. Baldwin-Lima-Hamilton Corporation, 216 Pa. Superior Ct. 96, 259 A. 2d 178 (1969), it was held that the action of the court below in remanding the case for the taking of additional medical testimony constituted an error of law, where the competent evidence in the case amply supported the findings of the compensation authorities, and that the remand could have no other purpose than to require the taking of further evidence which could support a possible change in the findings and was, therefore, not within the power of the court. Likewise in Williams v. Bonair Foundry Company, 215 Pa. Superior Ct. 357, 257 A. 2d 69 (1969), a remand order of the court below for additional medical testimony was reversed as being an error of law.

It is the prerogative of the Workmen’s Compensation Board to weigh the testimony of the witnesses and to accept or reject either in Avhole or in part such testimony. The Board is the ultimate fact finder. The credibility of Avitnesses, including those qualified as medical experts, remains for the finder of fact. De-Mascola v. Lancaster, 200 Pa. Superior Ct. 365, 189 A. 2d 333 (1963). Here the remand for further medical testimony Avould be a futile effort and an error of law, [88]*88in view of the Board’s finding that the decedent died of amyotrophic lateral sclerosis, when the record amply supports such a finding by competent evidence. See Bussone v. Sinclair Refining Company, 210 Pa. Superior Ct. 442, 234 A. 2d 195 (1967).

In the present case, the factual theory on which the petitions of decedent and claimant were tried was the theory that, in the October 17, 1962 accident, decedent suffered a spinal cord injury which caused his progressive subsequent disability and death. No witness who . appeared on behalf of claimant or decedent even suggested that the accident aggravated or accelerated an existing disease process.

Two medical witnesses appeared on behalf of claimant and decedent. These were Dr. Bernard Johnston and Dr. Walter Bongaus.

Dr. Johnston, who stated that he specialized in neurology, conducted a single examination of Mr. Fesh on July 19, 1963, approximately nine months after the accident. It w;as Dr. Johnston’s opinion that decedent had suffered a hyperextension type injury of the thoracic spine when he fell at work. He adamantly maintained that the decedent was not suffering from amyotrophic lateral sclerosis but, rather, from the effects of trauma. He attached no significance to decedent’s ankle injury; he testified that injury could not have had any effect on the course of any disease process. As did the witnesses who appeared on behalf of the appellant company, he pointed out that the ankle injury was “coincidental” and merely served to call decedent’s attention to his disability.

Claimant’s other medical witness, Dr. Bongaus, did not suggest that, at any time during the three years that he treated decedent prior to his death, he had any reason to question the soundness of the diagnosis of amyotrophic lateral sclerosis. Furthermore, he testi[89]*89fied that he signed decedent’s death certificate on which death was attributed to amyotrophic lateral sclerosis. Nowhere in his testimony did Dr. Eongaus suggest that there was any connection between the October 17, 1962 accident and decedent’s subsequent disability and death. In fact, an insurance certificate signed by Dr. Eongaus indicated his conclusion that decedent’s disability did not arise out of his employment.

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Bluebook (online)
286 A.2d 10, 4 Pa. Commw. 84, 1972 Pa. Commw. LEXIS 535, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fesh-v-american-steel-wire-division-united-states-steel-corp-pacommwct-1972.