United Industrial Maintenance & Westmoreland Casualty Co. v. Commonwealth

405 A.2d 1360, 46 Pa. Commw. 156, 1979 Pa. Commw. LEXIS 1999
CourtCommonwealth Court of Pennsylvania
DecidedSeptember 21, 1979
DocketAppeal, No. 1234 C.D. 1978
StatusPublished
Cited by9 cases

This text of 405 A.2d 1360 (United Industrial Maintenance & Westmoreland Casualty Co. v. Commonwealth) 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
United Industrial Maintenance & Westmoreland Casualty Co. v. Commonwealth, 405 A.2d 1360, 46 Pa. Commw. 156, 1979 Pa. Commw. LEXIS 1999 (Pa. Ct. App. 1979).

Opinion

Opinion by

Judge Crumlish, Jr.,

Westmoreland Casualty Company (Westmoreland), insurance carrier for United Industrial Maintenance (United Industrial), appeals an order of the Workmen’s Compensation Appeal Board (Board) that it is chargeable for payment of compensation to David W. Kimmick.

Kimmick was employed by United Industrial on October 27, 1972, when he sustained a left femural fracture, falling approximately 87 feet in a work-related accident. An intermedullary rod was surgically implanted in his leg. At the time of the accident, his employer’s insurer, Rockwood Insurance Company (Rockwood) paid Kimmick $94.00 weekly compensation until March 25, 1973, when he returned to work. On December 5, 1973, he underwent surgery for the removal of the rod. Rockwood resumed compensation payments until Kimmick’s return to work on January 20, 1974. On January 29 Kimmick, in another work-related accident, fractured his right ankle, and Rock-wood paid him compensation until March 3, 1974. On March 4, 1974, Kimmick again returned to work as a general laborer and signed a final receipt of compensation.

Rockwood, on March 15, 1974, cancelled United Industrial’s coverage and Westmoreland assumed liability coverage from March 16,1974.

[158]*158In May, 1974, Kimmiek sustained a ligamentous tear and other injuries to his left knee when his knee “popped” as he jumped several feet from a tugger hoist.1 He continued to work without wage loss though with considerable pain until August 6, 1974, when his physician prescribed further surgery because of the severity of his knee problem. Thereafter he did not work until February 21, 1976, when he began to work part-time as an apprentice beautician.

The referee, after hearing two orthopedic surgeons testify, attributed Kimmiek’s periods of total disability to his 1972 fall of 87 feet, granted his petition to set aside the final receipt,2 and held Bockwood exclusively liable for all payments of compensation to Kim-mick.3

Bockwood appealed to the Board which purported to adopt the referee’s factual findings but held that the findings ineluctably led to the conclusion that the May, 1974 incident resulted in an aggravation of a preexisting condition, a separate compensable injury under Section 301(c) of The Pennsylvania Workmen’s Compensation Act (Act),4 77 P.S. §411- Accordingly, the Board concluded that Westmoreland, as United Industrial’s insurance carrier on the date of the second compensable injury, was exclusively liable.

[159]*159Westmoreland now appeals to us, contending that the Board exceeded its authority in reversing the referee and that the Board has misread the referee’s findings. We agree with Westmoreland and reverse the Board.

Initially, we observe that the Board, as do all components of the administrative process, serves a limited function. The referee remains the arbiter who weighs credibility of witnesses and considers the respective merit of conflicting testimony including medical testimony. The Board may not disregard the referee’s findings where they are supported by substantial evidence and may substitute its own findings only where it takes additional evidence. Section 423 of the Act, 77 P.S. §854. See also Jones v. Workmen’s Compensation Appeal Board, 25 Pa. Commonwealth Ct. 546, 360 A.2d 821 (1976); Universal Cyclops Steel Corp. v. Krawczynski, 9 Pa. Commonwealth Ct. 176, 305 A.2d 757 (1973).

The Board correctly states the law: an aggravation of a pre-existing condition constitutes an “injury” under Section 301(c) entitling one to compensation “regardless of prior physical condition.”

That an employee has a chronic condition or ailment which makes him more susceptible to injury does not defeat his right to compensation if the subsequent injury materially contributes to the acceleration or aggravation of his pre-existing chronic condition. See Duquesne Light Co. v. Battisti, 44 Pa. Commonwealth wealth Ct. 350, 403 A.2d 1352 (1979) see also Workmen’s Compensation Appeal Board v. A.R. Bar, Inc., 22 Pa. Commonwealth Ct. 609, 349 A.2d 805 (1976).

In Pittsburgh Outdoor Advertising Co. v. Workmen’s Compensation Appeal Board, 39 Pa. Commonwealth Ct. 338, 395 A.2d 648 (1978), an employee sustained two separate work-related injuries; he had fall[160]*160en in 1970 and injured both heels, returned to work and fell again in 1973, sustaining a back injury. The medical testimony recorded that the combination of the two injuries, though neither by itself totally disabling, contributed to the employee’s resultant total disability. There, the insurance carrier of record at the time of the second accident was charged with the liability for paying total disability compensation.

Whether or not Kimmick’s 1974 jump from the tugger hoist which resulted in his banging his knee against a sloped roof surface materially caused his subsequent total disability is a question of fact to be determined by the factfinder. Burke v. Baldwin-Lima-Hamilton Corp., 211 Pa. Superior Ct. 1, 233 A.2d 589 (1967).

On this issue, the referee made the following findings which accurately summarize the medical testimony adduced:

NINE: That it was the medical opinion of Dr. McMaster . . . that he was unable to testify with any degree of reasonable medical certainty that the injury to the left knee was attributable to a second injury having occurred on May 21, 1974, or whether the trauma to the left knee on May 21, 1974 resulted from a preexisting injury to the left knee on October 27, 1972, when the Claimant fell 87 feet fracturing his left femur; the doctor’s opinion was that both traumas affect this Claimant’s left leg but that reasonable causation cannot be supplied to determine which of the two occurrences are responsible for the present condition.
TEN: That Dr. David E. Foss was of the opinion that the subsequent trauma which occurred when the Claimant jumped several feet from a tugger hoist to a roof on May 21, 1974, [161]*161did not appear adequate to have .produced a torn right medial meniscus, right medial collateral ligament, posterior cruciate and a posterior medial joing [sic] capsule injury, but that these injuries were directly attributable to the original accident of October 27, 1972, and that all of Claimant’s present problems with his left leg were attributable to the injury of October 27,1972.

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Bluebook (online)
405 A.2d 1360, 46 Pa. Commw. 156, 1979 Pa. Commw. LEXIS 1999, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-industrial-maintenance-westmoreland-casualty-co-v-commonwealth-pacommwct-1979.