Mitchell v. Workmen's Compensation Appeal Board

458 A.2d 313, 73 Pa. Commw. 401, 1983 Pa. Commw. LEXIS 1517

• Court: Commonwealth Court of Pennsylvania
• Decided: April 13, 1983
• Docket: Appeal, No. 782 C.D. 1981
• Status: Published

Opinion

Opinion by

Judge Doyle,

This is ¡an ¡appeal by John T. Mitchell, Jr. (¡Claimant) from the decision and order of the Workmen’s Compensation Appeal Board (Board) which affirmed the decision of .a referee .to deny a claim petition filed against his employer, Townsend & Bottum, Iuc. Following a careful review of the record, we affirm the order of the Board.

Claimant was employed hy Townsend & Bottum as a plumber and welder’s helper. On November 14,1977, Claimant sought medical treatment for ,a loss of hearing. Claimant complained that he had lo,st hearing in his right ¡ear over 'an eight year period and had recently experienced vertigo before suffering sudden hearing loss to the left ear.¹ Following ¡an examination by John DiCicco, M.D. which revealed that Claimant had no hearing in either ear, Dr. DiCicco concluded that the loss of hearing in the left ear was the result of ¡a perilymphatic fistula.² Dr. DiCicco explained that this condition may be caused by physical exertion, coughing, nose blowing, or a loud traumatic noise. In an effort to attribute the disability to his employment, Claimant testified that several months ¡previous he had been exposed to a boiler blowdown ¡blast at his place of employment. The referee did not ¡accept this testimony, however, as establishing the necessary causal connection. The referee found that:

5. The claimant’s testimony is replete with variances, divergences, and contradictions, involving Ms version of alleged exposure, injury, notice, disability, and «other elements.

The referee therefore concluded that Claimant’s disability was not work related. After the Board affirmed the referee without accepting «additional evidence, Claimant appealed ¡to this Court alleging that the referee capriciously disregarded «competent evidence.

Where there is no obvious «causal connection between a claimant’s disability and his employment, the causal connection must be established by unequivocal medical testimony. Heffer v. GAF Corporation, 29 Pa. Commonwealth Ct. 365, 370 A.2d 1254 (1977). Medical testimony based on possibility, or even probability, is not legally competent to «establish «the causal connection in «such «a case. Halaski v. Hilton Hotel, 487 Pa. 313, n. 2, 409 A.2d 367, n. 2 (1979); Czankner v. Sky Top Lodge, Inc., 13 Pa. Commonwealth Ct. 220, 308 A.2d 911 (1973). The record shows that Dr. DiCieco’s unequivocal conclusion «that «Claimant’s disability was work related was based exclusively upon a hypothetical question which «assumed a fact in «contradiction to the referee’s findings.³ When all reference to the contradictory fact was «deleted, Dr. DiCicoo’s op«inion was substantially altered:

Well, if going by the records «and going by what is stated here, I couldn’t make the connection ... In other wo«rds, I couldn’t say that his hearing loss was due to a blast, that he had acoustic trauma which he had underwent in July, now presenting on November 14 with that type of history.

Thus, considering Dr. DiOieco’s entire testimony, it is clear this evidence is not competent to establish the causal link ,to relate Claimant’s 'disability with his employment. Accordingly, the order of the Workmen’s Compensation Appeal Board is affirmed.

Order

Now, April 13, 1983, the order of the Workmen’s Compensation Appeal Board at A-79762, dated March 12,1981, is hereby affirmed.

1 At no time was Claimant’s 'hearing loss to the right ear the subject of the claim petition.

2 This condition allows fluid to escape from the inner ear into the middle ear.

3 The hypothetical assumed that Claimant was exposed to a boiler blowout blast which caused an excessive amount of noise. Not only did «the referee fail to find credible evidence of the blast, but the question did not describe «the duration or decible level of the noise or the degree of exposure.