Opinion
Argued December 5, 1974
January 16, 1975.
Workmen's compensation — Scope of appellate review — Findings of fact — Substantial evidence — Error of law — Violation of constitutional rights — Questions not raised below — Causation — Medical witness — Hypothetical questions — Independent proof of assumed facts.
1. In a workmen's compensation case where the party with the burden of proof prevailed below, review by the Commonwealth Court of Pennsylvania is to determine whether the necessary findings of fact are supported by substantial evidence, an error of law was committed or constitutional rights have been violated. [278]
2. Objections to the fact that several referees heard evidence in a workmen's compensation case, which were not raised below, cannot be raised on appeal in the Commonwealth Court of Pennsylvania. [278-9]
3. A hypothetical question directed to a medical witness on the issue of causation may properly include facts independently proved by other witnesses, and the opinion of the witness may be based upon such facts in the record. [279-80]
Argued December 5, 1974, before Judges KRAMER, WILKINSON, JR., and ROGERS, sitting as a panel of three.
Appeal, No. 490 C.D. 1974, from the Order of the Workmen's Compensation Appeal Board in case of Richard T. Doolin v. Allied Chemical Corporation, No. A-67873.
Petition with Department of Labor and Industry for workmen's compensation benefits. Benefits awarded. Employer and insurance carrier appealed to the Workmen's Compensation Appeal Board. Award affirmed. Employer and insurance carrier appealed to the Commonwealth Court of Pennsylvania. Held: Affirmed.
Joseph J. Murphy, with him, of counsel, Murphy, Murphy Murphy, for appellants.
Vincent B. Corsetti, with him Bank, Minehart D'Angelo, and James N. Diefenderfer, for appellees.
This is an appeal from an order of the Workmen's Compensation Appeal Board (Board), dated April 4, 1974, which affirmed a referee's award of compensation to Richard T. Doolin (Doolin).
On May 2, 1968, Doolin was employed as a laborer by the Allied Chemical Corporation (Allied). On that date a fire broke out at Allied's plant, and, while fleeing for safety, Doolin allegedly slipped and fell, injuring his back. After receiving medical attention, Doolin returned to work at Allied, but, on May 23, 1968, his back was allegedly injured again while he was pulling a piece of conduit. Subsequent to this second injury, Doolin twice required hospitalization and extended medical care. The referee specifically found that two compensable "accidents" had occurred on the aforementioned dates, and an award for temporary disability and medical costs was entered.
Our scope of review in cases where the party with the burden of proof has prevailed below is to determine whether any necessary findings of fact are supported by substantial evidence, whether any errors of law have been committed, and whether constitutional rights have been violated. David v. Bellevue Locust Garage, 12 Pa. Commw. 602, 604, 317 A.2d 341, 342 (1974).
Allied and its insurance carrier raise two issues, and we may quickly dispose of one of them. It is suggested that error was committed by virtue of the fact that several referees heard testimony in this case, while the adjudication was rendered by only one referee, who, necessarily, did not personally hear all of the evidence. No objection to this procedure was made below, nor was it specifically excepted to by Allied. In such circumstances, as we have said before, the question has not been properly presented to this Court, and, accordingly, we will not discuss it further. See Muser v. I.B.M. Corporation, 13 Pa. Commw. 12, 14, 317 A.2d 352 (1974) and United States Steel Corporation v. Simon, 9 Pa. Commw. 281, 287, 305 A.2d 913, 917 (1973).
Allied also questions whether there is "sufficient competent evidence of record upon which the award can be based" and/or whether there has been "a capricious disregard of the competent evidence." It should be pointed out that Allied offered no evidence by way of defense to Doolin's claim, and the only testimony was given by Doolin himself, an eyewitness to the first accident, and Doolin's doctor.
The proper test where the party with the burden of proof prevails below is the substantial evidence test mentioned above and not the "capricious disregard" test.
Specifically, Allied questions the sufficiency of Doolin's medical evidence, and its relationship to proof of the accident itself. As is common in any case involving personal injury, the testimony of a doctor was required to establish the causal relationship, and the expert's ultimate conclusion was based upon a hypothetical question which assumed certain facts related to the incident which allegedly caused the injury. As noted above, Doolin's doctor was the only medical witness, and there can be no question regarding the unequivocal nature of his conclusion. Dr. Lodise said, in response to questioning by Doolin's counsel, that "I can say with medical certainty that the injury sustained by Mr. Doolin on May 23rd and May 2, 1968 are [the] direct cause of his present disability."
This statement was elicited through a question that assumed an "accident" had occurred, and, in this connection Allied cites Collins v. Hand, 431 Pa. 378, 390-91, 246 A.2d 398, 404 (1968) for the proposition that "the opinion of the expert does not constitute proof of the facts necessary to support the opinion." This is undoubtedly true, but the principle enunciated in Collins does not negate the effect of independent proof of the matters assumed by the hypothetical question. This record contains an uncontradicted description of the accidents in question, and such testimony, if believed, is sufficient to form a basis for the doctor's conclusions on causation and disability. Accordingly, we
ORDER
AND NOW, this 16th day of January, 1975, it is hereby ordered that the Allied Chemical Corporation and/or its insurance carrier, Travelers Insurance Company, pay Richard T. Doolin compensation at the rate of $60 per week for a period of 10 6/7 weeks, beginning May 23, 1968, and ending August 7, 1968, and, thereafter, for a period of 10 4/7 weeks, beginning December 21, 1968, and ending March 6, 1969; and it is further ordered that, thereafter, any compensation and payments are suspended until Richard T. Doolin's disability resolves itself in further loss of wages; and, it is further ordered that the Allied Chemical Corporation and/or its insurance carrier, Travelers Insurance Company, pay the following medical expenses incurred by Richard T. Doolin:
St. Joseph's Hospital ....................... $ 2.00 Dr. Raymond J. Lodise ....................... 197.00 Dr. Lester Kent ............................. 10.00 Sauer Company ............................... 51.00 Total ..................................... $260.00
The above awards of compensation shall bear interest at the rate of six percent (6%) per annum.