Opinion
November 18, 1983.
Workmen's compensation — Petition to terminate — Burden of proof — Scope of appellate review — Credibility — Conflicting evidence — Hearsay — Availability of suitable work — Transcripts.
1. Review by the Commonwealth Court of Pennsylvania in a workmen's compensation case where the party with the burden of proof prevailed below is to determine whether constitutional rights were violated, an error of law was committed or necessary findings of fact were unsupported by substantial evidence. [428]
2. An employer seeking to terminate workmen's compensation payments must prove that all work-related disability has ceased, and, when substantial evidence supports that contention, the employer cannot be said to have failed in its burden merely because evidence to the contrary was also introduced as it is for the factfinder to resolve such conflicts and judge credibility. [429]
3. A workmen's compensation referee may properly disregard uncorroborated hearsay. [429]
4. An employer who establishes that all work-related disability has ceased is not required to prove the availability of work within the claimant's capabilities as the employer would have had to establish in a case in which a partial work-related disability remained. [430]
5. A remand of a workmen's compensation case is not required merely because the preparation of the transcript was delayed two years when no showing was made that the transcript was incomplete or was so inadequate as to hinder appellate review. [430-1]
Submitted on briefs October 6, 1983, to Judges WILLIAMS, JR., BARRY and BLATT, sitting as a panel of three.
Appeal, No. 1803 C.D. 1982, from the Order of the Workmen's Compensation Appeal Board in case of Benjamin H. Frye, Jr. v. Lafferty Trucking Company, No. A-79173.
Petition to terminate benefits filed with the Department of Labor and Industry. Benefits terminated. Claimant appealed to the Workmen's Compensation Appeal Board. Termination affirmed. Claimant appealed to the Commonwealth Court of Pennsylvania. Held: Affirmed.
Frederick B. Gieg, Jr., Gieg Gieg, for petitioner.
Alan R. Krier, Jubelirer, Carothers, Krier, Halpern Smith, for respondents.
Benjamin H. Frye, Jr. (claimant) appeals here an order of Workmen's Compensation Appeal Board (Board) which affirmed the referee's decision to grant the termination petition of the Lafferty Trucking Company (employer).
The claimant, who has a history of back problems, was injured in the course of his employment and received total disability payments. After hearings before the referee, payments were terminated based on the deposition testimony of the employer's physician that all work-related disability had ceased. The Board affirmed and the claimant filed the instant appeal.
In a termination proceeding, the employer has the burden of proving that all work-related disability had ceased. Walther v. Workmen's Compensation Appeal Board, 37 Pa. Commw. 122, 388 A.2d 1166 (1978). And where, as here, the party with the burden of proof has prevailed before the referee, and the Board took no additional evidence, this Court's scope of review is to determine whether or not constitutional rights were violated, an error of law was committed, or a necessary finding of fact was unsupported by substantial evidence. Lookout Volunteer Fire Co. v. Workmen's Compensation Appeal Board, 53 Pa. Commw. 528, 418 A.2d 802 (1980).
The claimant argues first that the termination petition should not have been granted because the employer did not meet his burden of proof. He relies on the deposition of his physician, who opined that the claimant's work-related disability had not ceased. The employer's physician disagreed, however, and stated that his examination of the claimant indicated that all disability related to the workplace had ceased. The referee, who was free to "accept or reject the testimony of any witness, including a medical witness, in whole or in part", Bowes v. Inter-Community Action, Inc., 49 Pa. Commw. 612, 618, 411 A.2d 1279, 1281 (1980) chose to accept the testimony of the employer's witness. And finding that testimony to be substantial evidence, it is not the function of this Court to decide questions of evidentiary weight and credibility. Bethlehem Steel Corp. v. Workmen's Compensation Appeal Board (Lombardi), 70 Pa. Commw. 392, 453 A.2d 370 (1982).
The claimant next argues that he was promised by a representative of the employer's insurance carrier that his benefits would not be discontinued until he had been rehabilitated and could accept employment in another line of work. He states that he then enrolled at the Pennsylvania State University in an engineering program, relying on these statements and believing that his compensation would not be terminated. The referee found, however, that the claimant resigned from his position with the employer, and, while he did not state why the claimant resigned, we do not believe that it was necessary for him to do so. There was no corroboration of the claimant's self-serving, hearsay testimony relating to the alleged agreement with the insurance agent and we do not believe that the referee erred in failing to accept it. See Smith v. Workmen's Compensation Appeal Board, 40 Pa. Commw. 117, 396 A.2d 905 (1979).
As the employer notes in his brief, it is difficult to believe that an insurance carrier would make such an agreement.
The claimant also argues that the termination petition should not have been granted because the employer did not prove that suitable work was available to him. It is true that, in cases where the claimant suffers a partial disability as a result of a work-related injury and is unable to return to his previous position of employment, then the employer would have the burden of proving the availability of suitable employment. Costanzo v. Workmen's Compensation Appeal Board, 49 Pa. Commw. 249, 410 A.2d 967 (1980). Here, however, the employer presented evidence, which the referee and the Board accepted, which tended to show that the work-related disability had ceased, and that any physical problems the claimant may still have had were causally related to a preexisting condition. In such case, the referee may terminate benefits without regard to the question of suitable work. Id. Moreover, we held in Bailey v. Workmen's Compensation Appeal Board, 60 Pa. Commw. 338, 431 A.2d 1114 (1981) that, when all disability related to a compensable injury has ceased, the claimant was no longer entitled to benefits despite the fact that he continued to have the same trouble that had predisposed him to injury in the first instance.
The claimant's final argument requests a remand because the hearing tapes were not transcribed for approximately two years, and because he does not believe that the transcript in its present state is totally complete. He cites the case of Alan Wood Steel Co. v. Carbo, 22 Pa. Commw. 301, 359 A.2d 471 (1975), an occupational disease proceeding, in support of his request. Alan Wood Steel Co., however, is readily distinguishable from the case at bar. There the transcripts of the hearings were not available to the Board or to the court of common pleas, and it was therefore impossible to review the decision on appeal effectively. Here, however, the Board and this Court have had the opportunity to review the notes of testimony at the referee's hearings and the depositions of the physicians, and we have no evidentiary support for the claimant's contention that these transcripts are incomplete, as, for example, the stenographer's statement to that effect.
We will, therefore, affirm the order of the Board.
ORDER
AND NOW, this 18th day of November, 1983, the order of the Workmen's Compensation Appeal Board in the above-captioned matter is hereby affirmed.