Minadeo v. Commonwealth , 43 Pa. Commw. 412 ( 1979 )

Opinion by

Judge Mencer,

Nunzio M. Minadeo (claimant) bumped Ms ankle while working as a stonecutter for Geiger & Sons (employer) on May 10, 1974. This injury aggravated a preexisting condition known as stasis-dermatitis, causing the development of swelling, ulceration, and cellulitis. As a result, claimant was unable to work after June 3, 1974. Stasis-dermatitis, described as an inflammation of the skin due to stagnation of blood, was caused by claimant’s fractured left heel in 1966 and the attendant development of circulatory problems, including phlebitis and venous incapacity. As a result of this condition, claimant has suffered from swelling, ulcerations, and cellulitis of varying severity on numerous occasions between 1966 and 1974. Workmen’s compensation benefits were granted for total disability between June 3, 1974 and January 9, 1975 but not thereafter. Claimant has appealed from this decision, alleging that he remains totally disabled as a result of the May 10,1974 incident.

The only issue on appeal is whether the referee capriciously disregarded evidence in finding that the aggravation of claimant’s condition had ceased as of January 9,1975 and that any disability thereafter is a result of the preexisting condition itself rather than the May 10,1974 injury.

Dr. Heibel testified on claimant’s behalf that his impaired circulation was. aggravated and accelerated by his injury and that, if this injury had not occurred, claimant would still. be working. Heibel, however, failed to explain the basis for this conclusion, i.e., he did not explain how claimant’s condition had changed or been made worse by the injury so that he was. able to work before tbe injury but not afterward. Additionally, Heibel testified tbat over a year before tbe injury he bad informed a rehabilitation center on claimant’s bebalf tbat claimant bad lost tbe use of bis left leg for tbe work in which be was engaged. He recommended at tbat time tbat claimant be trained for other work.

On tbe other band, Drs. Narus and Tavana testified on claimant’s bebalf tbat the stasis-dermatitis condition is permanent and irreversible, will be more or less severe throughout claimant’s life, and may flare up at any time, whether as a result of trauma, mere scratching, or other causes. Tavana indicated tbat tbe condition is considered under control when swelling, cellulitis, and ulcers are not present and testified tbat claimant’s condition was under control as of January 9, 1975. He indicated tbat walking, resting with feet elevated, and use of a support stocking were tbe only effective means of maintaining control of tbe condition. With this in mind, Tavana testified tbat claimant was capable of working as of January 9,1975 as long as the work did not involve long periods of sitting or standing. He stated tbat, although claimant could return to bis former work at that time, be believed it would probably be harmful, due to tbe required standing. We note tbat Tavana’s opinion regarding tbe barm associated with claimant’s former work is not unlike Heibel’s advice given to tbe rehabilitation center a year before the injury in May 1974.

Tbe evidence shows tbat claimant’s preexisting condition has and will continue to vary between being controlled and being aggravated, tbat the complications arising after the injury were similar to those which were occasionally experienced before the injury, and tbat a year before tbe May 1974 injury it was recommended that claimant be trained for different work because be bad “lost tbe use of tbe leg.” There is a lack of positive evidence that claimant’s condition, after the complications were under control in January-1975, differed from his condition before the May 1974 injury. It is for the referee as factfinder to determine credibility and weight of the evidence, see Davis v. Workmen’s Compensation Appeal Board, 41 Pa. Commonwealth Ct. 262, 398 A.2d 1105, 1106 (1979); and, as factfinder, he may disregard even uncontradicted testimony if it lacks credibility, see Berdy v. Glen Alden Corp., 202 Pa. Superior Ct. 525, 198 A.2d 329 (1964). Under these circumstances, we are satisfied that the referee did not capriciously disregard Ileibel’s testimony in finding that the aggravation of claimant’s preexisting condition on May 10, 1974 had ceased as of January 9, 1975 and that any disability thereafter resulted from the preexisting condition.

Ceder

And Now, this 18th day of June, 1979, the appeal of Nunzio M. Minadeo is hereby dismissed, and the order of the Workmen’s Compensation Appeal Board, dated April 20, 1978, is affirmed. Accordingly, it is ordered that judgment be entered in favor of Nunzio M. Minadeo and against Geiger & Sons and/or Pennsylvania Manufacturers’ Association Insurance Company, in the amount of $106 per week, commencing June 3,1974 and continuing through January 8,1975, together with interest at the rate of 10 percent per annum on deferred payments of compensation from the date due to the date paid, all within the terms and limits of The Pennsylvania Workmen’s Compensation Act.

In addition, Geiger & Sons and/or Pennsylvania Manufacturers’ Association Insurance Company are directed to pay the following medical and hospital expenses, reimbursing Nunzio M. Minadeo for those amounts paid by him:

Edward J. Heibel, M.D. $ 6.00

V. T. Narus, M.D. 29.00

M. Tavana, M.D. 195.00

St. Vincent Hospital 835.90

Prescriptions 106.53

Mary P. Hines, Reporter 73.50

Edward J. Heibel, M.D. 50.00

V. T. Narus, M.D. 100.00

M. Tavana, M.D. 50.00

St. Vincent Hospital 15.00

Donna Monaco, Reporter 44.00

Cecelia Muhanna, Reporter 4.50

In addition, Geiger & Sons and/or Pennsylvania Manufacturers’ Association Insurance Company are directed to pay to claimant’s counsel 20 percent of the above award as counsel fees which shall be chargeable to claimant’s award.