Summary
In Workmen's Compensation Appeal Board v. Jones Laughlin Steel Corp., 22 Pa. Commw. 469, 349 A.2d 793 (1975), we held that the question of whether an expert witness's knowledge or experience justifies admitting his opinion is one largely within the discretion of the referee. If the referee believed that the claimant's physician, based on his familiarity with the claimant's condition and his previous experience, was competent to express an expert opinion on the matter in question, then he was "justified in exercising his discretion in favor of allowing the doctor's opinion into evidence."
Summary of this case from Harmar Coal Co. v. CommonwealthOpinion
Argued October 30, 1975
December 31, 1975.
Workmen's compensation — Petition to set aside final receipt — The Pennsylvania Workmen's Compensation Act, Act 1915, June 2, P.L. 736 — Burden of proof — Clear and convincing evidence — Medical evidence — Evidentiary weight — Expert — General practitioner.
1. Provisions of The Pennsylvania Workmen's Compensation Act, Act 1915, June 2, P.L. 736 relating to final receipts in effect when the receipt was executed control proceedings to set aside such receipt. [471-2]
2. In a proceeding to set aside a final workmen's compensation receipt, the burden is upon the claimant to prove by clear and convincing evidence that his disability has not terminated, and it is for the referee as fact finder to determine whether the medical evidence presented by the claimant is more convincing than that of the employer and is sufficient to sustain such burden. [472-3]
3. It is for the referee as fact finder in a workmen's compensation case to determine in his discretion whether a medical expert's knowledge and experience in the subject under investigation is sufficient to justify the admission into evidence of his opinion, and a physician who is a general practitioner may be found competent by education and experience to render an opinion on matters of urology and psychiatry. [473-4]
Argued October 30, 1975, before President Judge BOWMAN and Judges ROGERS and BLATT, sitting as a panel of three.
Appeal, No. 427 C.D. 1975, from the Order of the Workmen's Compensation Appeal Board in case of Carl A. Lindbom v. Jones Laughlin Steel Corporation, No. A-69046.
Petition with Department of Labor and Industry to set aside final compensation receipt. Petition granted. Total disability benefits awarded. Employer appealed to the Workmen's Compensation Appeal Board. Award affirmed. Employer appealed to the Commonwealth Court of Pennsylvania. Held: Affirmed.
John C. Unkovic, with him Reed, Smith, Shaw McClay, for appellant.
William R. Caroselli, with him McArdle, Henderson, Caroselli, Spagnolli Beachler, and James N. Diefenderfer, for appellees.
Jones Laughlin Steel Corporation (employer) appeals here from a decision of the Workmen's Compensation Appeal Board (Board) which affirmed a referee's order setting aside a final settlement receipt executed between the employer and Carl A. Lindbom (claimant). We affirm the Board.
The claimant sustained a fractured pelvis and a transected urethra while working at the employer's plant on February 7, 1970 as a brakeman, a job entailing heavy labor. As a result of this accident he received benefits from February 8, 1970 until March 16, 1971, but he signed a final settlement receipt on April 8, 1971 indicating that he had been able to return to work on March 17, 1971. On December 13, 1971, however, he filed a petition to set aside the final receipt, and a series of hearings was held before a referee who ruled on that petition on August 23, 1974, finding that the claimant's disability had continued after March 17, 1971 and reinstating benefits from that date. The Board affirmed without taking additional evidence.
A case such as this one, wherein the claimant seeks to set aside a final receipt, is governed by Section 434 of the Workmen's Compensation Act. This section of the Act has been amended several times but the version in effect when the final receipt was executed, must control. Bun v. Central Pennsylvania Quarry, Stripping Construction Co., 194 Pa. Super. 630, 169 A.2d 804 (1961). The applicable version provided as follows:
Act of June 2, 1915, P. L. 736, as amended, 77 P. S. § 1001.
"A final receipt, given by an employe or dependent entitled to compensation under a compensation agreement or award, shall be prima facie evidence of the termination of the employer's liability to pay compensation under such agreement or award: Provided, however, That the board, or a referee designated by the board, may, at any time within two years from the date to which payments have been made, set aside a final receipt, upon petition filed with the board, if it be conclusively proved that all disability due to the accident in fact had not terminated."
In order to meet his burden under this section, the claimant must present clear and convincing evidence that his disability had not terminated. Maciupa v. Union Switch Signal, 13 Pa. Commw. 126, 317 A.2d 901 (1974); Rice v. A. Steiert Sons, Inc., 8 Pa. Commw. 264, 301 A.2d 919 (1973). In attempting to satisfy that burden, the claimant here presented the testimony of Dr. Gerald W. Pifer, an orthopedist acquainted with the claimant's medical history. Dr. Pifer stated that he had examined the claimant on two occasions, April 14, 1973 and on July 5, 1973, and he related the claimant's injuries as having consisted principally of a fractured pelvis and a transected urethra. He expressed the opinion that the claimant was unable to return to his job because of the pain which he had had since the accident and which he was still experiencing. The claimant also testified on his own behalf and described his continuing pain. He stated that he could not do any kneeling or heavy lifting and that he could not walk for long distances or sit for any long period of time. He also recounted that when he attempted to return to work on one day in March or April of 1972, he felt such soreness that he could not continue. We believe that such testimony, if believed by the referee, was sufficient to sustain the claimant's burden.
The employer argues, of course, that its medical evidence was much more convincing than the claimant's in that it consisted of the testimony of three examining doctors, including an urologist, an orthopedist and a psychiatrist. The employer also points out that, by the claimant's own admission, two other physicians who examined him felt that he could return to work and was thus not totally disabled. It is, however, within the referee's fact finding power to determine which evidence he chooses to believe and this power includes the resolution of conflicts in the medical testimony. Westinghouse Electric Corporation v. Workmen's Compensation Appeal Board, 17 Pa. Commw. 152, 331 A.2d 221 (1975). His finding of continued disability here is supported by substantial evidence, the testimony of Dr. Pifer and the claimant himself. In Maciupa, supra, the claimant's testimony alone was held to be sufficient to enable him to sustain his burden and to support a decision to set aside a final receipt.
The employer also argues that the referee erred in permitting Dr. Pifer to discuss the urological and, to a lesser extent, the psychological effect of the claimant's injury because Dr. Pifer was not a specialist in those areas. The question of whether or not the expert witness' knowledge or experience justifies admitting his opinion is a matter largely within the discretion of the judge at a jury trial. Ragan v. Steen, 229 Pa. Super. 515, 331 A.2d 724 (1974); DeMarco v. Frommyer Brick Company, 203 Pa. Super. 486, 201 A.2d 234 (1964). In a workmen's compensation case, the referee assumes the same discretionary authority, and a witness may be qualified as an expert if he "has any reasonable pretension to specialized knowledge on the subject under investigation." Moodie v. Westinghouse Electric Corporation, 367 Pa. 493, 501, 80 A.2d 734, 738 (1951). In Ragan, supra, a surgeon who was not a radiologist and who was admittedly unfamiliar with the practice of removing plantar warts by x-ray treatment, was permitted to testify concerning the effects of an overdose of radiation administered to a person undergoing such treatment. The Superior Court held there that no abuse of discretion by the trial judge occurred, for the witness had had many occasions to refer his own patients for x-ray treatment, was knowledgeable as to the risks of such treatment and had had occasion to observe the results of massive doses of radiation. In the case at hand, Dr. Pifer testified that a fractured pelvis frequently causes other injuries, including urological ones, so that there is an interrelationship between the orthopedic and urological symptoms. Although he admitted that he did not treat urological problems per se, he stated that if he could correct an orthopedic problem, sometimes the cause of the urological problem would also be thereby removed. Moreover, Dr. Pifer's medical education encompassed the areas of urology and psychiatry, even if he did not subsequently choose either of these fields for his specialty. We believe that Dr. Pifer exhibited sufficient familiarity with the claimant's difficulties that the referee was justified in exercising his discretion in favor of allowing the doctor's opinion into evidence.
We, therefore, issue the following
ORDER
AND, NOW, this 31st day of December, 1975, the order of the Workmen's Compensation Appeal Board setting aside the final receipt and reinstating benefits for total disability to Carl A. Lindbom is hereby affirmed.