Superior Court of Pennsylvania.October 3, 1929.
October 7, 1929.
Workmen’s Compensation Board — Injury — Award — Appeal.
In an appeal from an award of the Workmen’s Compensation Board, the evidence disclosed that the claimant injured his back in two accidents within a period of a month. In the first accident he was hit by a falling cement bag, and in the second he fell on a slippery board. During the period between the accidents the claimant worked, but suffered pain. The medical testimony was to the effect that the injury complained of was due to the first accident, and that the second accident did not aggravate the injury or produce an incapacity which otherwise would not have existed. In such case the award of compensation for injuries sustained in the first accident will be affirmed.
Argued October 3, 1929.
Appeal No. 249, October T., 1929, by defendant from judgment of C.P., No. 4, Philadelphia County, March T., 1929, No. 5460, in the case of Tony Zalenski v. Jarka Corporation of Philadelphia.
Before PORTER, P.J., TREXLER, KELLER, LINN, GAWTHROP, CUNNINGHAM and BALDRIGE, JJ. Affirmed.
Appeal from award of Workmen’s Compensation Board. Before FINLETTER, P.J.
The facts are stated in the following opinion of the court below:
Claimant was injured in two accidents, the one on May 18, 1927, and the other on June 14 1927.
His employer, the Jarka Company, carried no insurance at the time of the first accident, but was insured at the time of the second.
The referee found, and the board approved the finding that the claimant’s incapacity was the result of the first accident.
This is a finding of fact, and if there is evidence upon which to base it, we cannot change it.
The physicians differed somewhat but not altogether, as to the cause of claimant’s incapacity. Dr. Gray,
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for the claimant, flatly ascribed it to the first accident.
“Q. Well does the condition which you found in your opinion relate to the first accident? A. To the first accident” (page 33). He had said also (page 32), “I think the second accident was caused by weakness due to the first accident.” But, as the appellant correctly says, it is the cause of the incapacity which is in point, not the cause of the accident. Dr. Mann called also by the claimant, testified (page 103): “Q. Now, in your opinion, from the injuries which he stated he received (referring to the injuries of the first accident) would you say that he is suffering from the consequences at the present time? A. I believe he is;” and again (page 104) “I believe he is — I found no other cause for his present condition.” At page 108, he said, after describing the second accident, “Q. The second injury would have been sufficient, would it, to have caused this condition which you found him in here without the first one? A. Either one of them might have caused it or both.” Finally, after answering some hypothetical questions, Dr. Mann said, “If the man had no injury the first time, then all this is due to the second time. If there was an injury it is due to both.”
The seat of the injury tends to confirm the opinion of Dr. Gray. Claimant when hurt on May 18th, was engaged in hauling a load of bags of cement. The rope containing them on the truck parted, and the bags fell, one or some, on him, striking him in the lower part of the back, in the “sacroiliac region.” In the second accident he fell on a slippery gangplank, and apparently was hurt about the head, for blood came from his nose and mouth. The condition he was finally in is thus described by Dr. Mann (page 100), “I found he was injured in the lower part of his back on the left side, at a joint that we call the sacroiliac joint…… There was evidence of pain there. The joint was enlarged,
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and the lower part of his back was very sore, muscles in a constant state of spasm.” The medical testimony then amounts to this. Dr. Gray is of opinion that the first accident caused the claimant’s present condition. Dr. Mann, when considering the facts of the first accident, ascribed claimant’s condition to it. When informed of the second he said that the second accident alone could have caused it. And that if the claimant suffered both accidents the condition was the result of both. If it is assumed, as the referee had a right to find, that the claimant suffered both accidents, there is no way in which he could have found that the claimant’s condition was solely the result of the second accident. The doctors unite in saying that the first accident would have produced the claimant’s incapacity. That is, this is not a case where a second cause aggravates an injury or disease, and produces an incapacity which otherwise would not have existed. The damage was due by the first accident. The second did not even make it more certain or greater.
It is true that there was evidence that claimant worked during the interval between the two accidents. But it was also shown that he was then in pain. On the other hand it appeared that his needs were such (he had a family of six children) that he probably felt obliged to work. One of the medical witnesses also found some congenital defects in his anatomy at the point of the pain. These are subjects of course which entered into the referee’s judgment on the facts, and we must assume they were considered by him. His finding of their effect we cannot review.
Since there was evidence to support the findings of the referee and board we must dismiss the exceptions and the appeal, and enter judgment for the claimant.
The court affirmed the award of the Workmen’s Compensation Board. Defendant appealed.
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Error assigned was the decree of the court.
J. Manning, of Acker, Manning Brown, for appellant.
J. Webster Jones, and with him Ralph N. Kellam, for American Mutual Liability Insurance Company, intervening appellee.
Robert E. Erwin, for appellee.
PER CURIAM, October 7, 1929:
This appeal is from a judgment for the claimant in a Workmen’s Compensation case; the judgment is affirmed on the opinion of President Judge FINLETTER.