Davis v. State Workmen's Insurance Fund

Argued April 25, 1941. In this compensation case, the referee made an award, which was sustained by the board and by the court of common pleas.

The petition was filed during the lifetime of the employee, who died before the hearing. The referee found the employee had an accident on January 15, 1934, causing a hernia and an injury to his hip; that the accident caused or aggravated a sarcoma of the buttocks, which totally disabled him on November 21, 1934, and from which he died on May 15, 1935. Based upon these findings, the referee made an award for total disability for a period from November 28, 1934 to May 15, 1935, and for death from the latter date. The sole question involved in this appeal is whether there was sufficient evidence to sustain the finding that the accident caused the disability and death.

There was evidence that on the date of the alleged accident the employee, while pushing a coal car in the defendant's mine, slipped and fell, striking his hip against the rail and sustaining a hernia. Thereafter, although he continued to work until August 18, 1934, when he was admitted to the hospital for an operation for the hernia, there was some evidence that he was partially disabled because of the hernia. He was discharged from the hospital on September 21, 1934, and it does not clearly appear whether he worked thereafter. At any rate, the sarcoma was subsequently discovered when he was readmitted to the hospital on February 13, 1935. There was no evidence of direct injury at the point of development of the sarcoma nor was there any evidence that the injury to the hip was in itself responsible for any disability.

In our opinion, there was no evidence to sustain the finding that there was a causal connection between the alleged accident and the sarcoma. The only medical testimony offered by claimant is the testimony of Dr. James F. Blair as follows: "Q. What was the cause of his death? A. Well, as near as I could determine, I signed the death certificate ``Sarcoma of the left hip.' But I tried to get his plates and charts from the hospital, but I haven't been able to. I haven't access to anything but as near as I could determine that is what I thought it was. Q. Could that have been caused by an injury that he suffered? A. They say 52% of sarcoma is that way. Q. Beg your pardon? A. 52% of sarcoma may be caused by previous injury. Q. By injury? A. May be; yes. Q. He died when, doctor? A. 5-16-35." This clearly does not measure up to the required standard, Monahan v. Seedsand Durham, 336 Pa. 67, 6 A.2d 889; Elonis v. Lytle, 134 Pa. Super. 264,3 A.2d 995. Judgment is reversed and entered for defendant.