# Reading Anthracite Co. v. Workmen's Compensation Appeal Board

> Commonwealth Court of Pennsylvania · October 26, 1988 · 120 Pa. Commw. 577

URL: https://www.frixlaw.com/law-library/cases/6373146

## Case

- **Full name:** Reading Anthracite Company v. Workmen's Compensation Appeal Board (Earley)
- **Court:** Commonwealth Court of Pennsylvania
- **Decided:** October 26, 1988
- **Citations:** 120 Pa. Commw. 577; 549 A.2d 616; 1988 Pa. Commw. LEXIS 841
- **Precedential status:** Published
- **Opinion:** Dissent by Barry
- **Judges:** Barry, Smith
- **Cited by:** 4 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

Dissenting Opinion by
Judge Barry:
I respectfully dissent. I do not believe the question of surgical intervention to possibly restore use of the claimants leg was properly presented to the referee. Accordingly, I see no need for a remand and would reverse the Boards order and reinstate the referees order.
The party asserting that an individual has lost the use of a bodily part for all practical intents and purposes bears the burden of proving such loss. Martin Trucking Company v. Workmens Compensation Appeal Board (Andrushenko), 55 Pa. Commonwealth Ct. 174 , 422 A.2d 1225 (1960). Here, the employer presented the testimony of Dr. Raymond P. van den Hoven, who was asked:
Q. Doctor, based on your examination with the physical limitations that you found, did you have an opinion, with a reasonably [sic] degree of medical certainty, as to whether or not the injury to his knee exascerbated [sic] his preexisting conditions that you’ve described to the point where they caused a loss of use of his right leg for all practical intents and purposes?
A. Yes, I would say that’s the case.
(Deposition of Dr. van den Hoven, June 6, 1984, pp. 10-11.) This testimony, believed by the referee, constitutes substantial evidence which met the employer’s *585 burden of proof. The Board concluded, however, that the testimony was insufficient because the medical expert did not specifically state that the loss of use of the leg was “permanent”. I believe under the circumstances of this case that the question of permanence is necessarily inferred when the medical expert , opined that the claimant has lost the use of the leg for all practical intents and purposes.
When a party is asserting the compensable loss of use of a body part, the burden of proving that surgical intervention could restore' some use shifts to the opposing party. Here, the claimant failed to present sufficient evidence. The only testimony concerning surgical intervention came during the direct examination of the claimant.
A. They want to fuse the leg. I’m afraid to get it done for all the strokes that I took.
Q. And who is recommending that a fusion of your leg be done?
A. Dr. Morrisey. ‘
Q. Okay.
A. Dr. Jewell is the one that don’t want it done because he is afraid during the operation he might have to amputate the leg and run into trouble.
(Testimony of claimant, July 13, 1984.)
There is no testimony about the effect a fusion might have on restoring the use of claimant’s leg. Because such a question is not within the ordinary knowledge of a layman, unequivocal medical testimony is necessary. See Lewis v. Workmens Compensation Appeal Board (Pittsburgh Board of Education), 80 Pa. Commonwealth Ct. 640 , 472 A.2d 1176 (1984), affirmed 508 Pa. 360 , 498 A.2d 800 (1985). In the present case, the claimant presented no such medical testimony. No medicál testimony having been presented here, the majority’s reliance *586 on Joyce Western Corp. v. Workmens Compensation Appeal Board (Fichtorn), 518 Pa. 191 , 542 A.2d 990 (1988), is misplaced because there the question was set forth with the proper evidence.
For all these reasons, I would reverse the order of the Board and reinstate the order of the referee.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6373146. Public record. Not legal advice.