Opinion
Argued March 11, 1977
May 12, 1977.
Workmen's compensation — Scope of appellate review — Violation of constitutional rights — Error of law — Findings of fact — Substantial evidence — Burden of proof — Injury arising in the course of employment — Date of injury.
1. In a workmen's compensation case where the party with the burden of proof prevailed before the referee and the Workmen's Compensation Appeal Board took no additional evidence, review by the Commonwealth Court of Pennsylvania is to determine whether constitutional rights were violated, an error of law was committed or necessary findings of fact of the referee were unsupported by substantial evidence. [94-5]
2. In a workmen's compensation case the burden is upon the claimant to prove the necessary elements to support an award including the fact that the claimed injury arose in the course of his employment. [95]
3. Substantial evidence does not support a finding that an injury arose in the course of the claimant's employment when no evidence was produced to establish that the claimed injury occurred on the date when it was alleged to have occurred, and the evidence indicated that the injury occurred at a much earlier time and that the claimant was not present at work on the claimed injury date. [95-6]
Argued March 11, 1977, before Judges WILKINSON, JR., MENCER and BLATT, sitting as a panel of three.
Appeal, No. 1307 C.D. 1976, from the Order of the Workmen's Compensation Appeal Board in case of Lloyd E. Fox v. Eazor Express, Inc., Docket No. A-71240.
Petition to the Department of Labor and Industry for workmen's compensation benefits. Benefits awarded. Employer appealed to the Workmen's Compensation Appeal Board. Award reversed. Petition dismissed. Petitioner filed petition for review in the Commonwealth Court of Pennsylvania. Held: Affirmed. Application for reargument filed and denied.
Clifford A. Rieders, with him Stuart, Murphy, Hager Smith, for petitioner.
Raymond F. Keisling, with him Will Keisling, for respondent.
Lloyd E. Fox (claimant) filed, on March 14, 1974, a claim petition for workmen's compensation benefits in which he alleged that he sustained injuries in an accident occurring on October 17, 1972 while he was employed by Eazor Express, Inc. (Eazor). The workmen's compensation referee to which the case was assigned made findings of fact that the claimant did sustain a work-related injury while working for Eazor on October 17, 1972 and found as a conclusion of law that the claimant was entitled to compensation benefits. Consequently, the referee made an award order.
On appeal of the referee's order, the Workmen's Compensation Appeal Board (Board) reversed the referee's determination and dismissed the claim petition. This appeal followed and we affirm.
Our scope of review, where, as here, the party with the burden of proof prevailed before the referee and the Workmen's Compensation Appeal Board took no additional evidence, is to determine whether constitutional rights were violated, an error of law was committed, or a necessary finding of fact of the referee was unsupported by substantial evidence. Mikalonis v. Workmen's Compensation Appeal Board, 25 Pa. Commw. 166, 172-73, 361 A.2d 483, 487 (1976).
The claimant in a workmen's compensation case has the burden of establishing his right to compensation and of proving all necessary elements to support an award. One of the necessary elements is that the injury arose in the course of employment. Here the Board, acknowledging its awareness of our holding in Universal Cyclops Steel Corp. v. Krawczynski, 9 Pa. Commw. 176, 305 A.2d 757 (1973), concluded that the referee's findings of fact that the claimant sustained a work-related injury while working for Eazor on October 17, 1972 were not supported by substantial competent evidence. On this record, we cannot imagine any other conclusion.
The claimant testified that he was off from work during the period of October 16, 1972 to November 11, 1972. Such testimony would seem to preclude a finding that claimant was injured in the employment of Eazor on October 17, 1972. In addition, the claimant testified that he was injured on April 29, 1972 when he slipped on some diesel fuel. The claimant, to corroborate that he was injured on April 29, 1972, introduced medical records that he was treated by Dr. Ruth Kull for a shoulder injury on April 29, 1972 and the testimony of his girl friend, Evelyn Fay, that she knew he had received a shoulder injury and accompanied him to Dr. Kull's office for treatment of the injury on April 29, 1972.
The only evidence indicating that the injury occurred on October 17, 1972 was an allegation in the claim petition and the claimant's answer, that October 17 was the date of the incident, to a question asked him near the beginning of the referee's hearing. We cannot conclude that the Board erred or abused its discretion when it determined that this record does not contain substantial evidence that claimant was injured on October 17, 1972.
Without the crucial findings of fact that claimant had sustained a work-related injury on October 17, 1972, there were no findings to support the referee's legal conclusion that claimant was entitled to compensation benefits. Consistent with the foregoing, we make the following
ORDER
AND NOW, this 12th day of May, 1977, the order of the Workmen's Compensation Appeal Board, dismissing the claim petition of Lloyd E. Fox, is hereby affirmed.