Opinion
Argued June 6, 1975
July 31, 1975.
Workmen's compensation — Scope of appellate review — Violation of constitutional rights — Error of law — Findings of fact — Substantial evidence — Total disability — Burden of proof — Light work — Medical testimony — Conflicting evidence.
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 constitutional rights were violated, an error of law was committed or any necessary finding of fact was unsupported by substantial evidence. [569]
2. A claimant may not recover workmen's compensation benefits for total disability if the employer proves both the availability to the claimant of light work and that he is capable of performing such work. [570]
3. A finding of total disability is supported by medical testimony that the claimant was sixty-five years old, had little education, had a history of back trouble and could perform no work of the type he had previously performed since any repetitive physical effort would not be possible. [570]
4. A referee in a workmen's compensation case may accept competent medical testimony of one witness and disregard that of another witness which is conflicting. [571]
Argued June 6, 1975, before Judges CRUMLISH, JR., KRAMER and BLATT, sitting as a panel of three.
Appeal, No. 708 C.D. 1974, from the Order of the Workmen's Compensation Appeal Board in case of John P. McDevitt v. Parkview Hospital, Inc., No. A-67545.
Petition with Department of Labor and Industry for workmen's compensation benefits. Petition granted. Employer appealed to the Workmen's Compensation Appeal Board. Award affirmed. Employer and insurance carrier appealed to the Commonwealth Court of Pennsylvania. Held: Affirmed.
David L. White, with him John F. McElvenny, for appellants.
Thomas F. McDevitt, with him James N. Diefenderfer, for appellees.
This is an appeal by Parkview Hospital and the Pennsylvania Manufacturers' Association Insurance Company from a decision of the Workmen's Compensation Appeal Board, which awarded compensation for total disability to John P. McDevitt. The issue in this case is whether the Hospital proved that McDevitt is capable of doing light work of a general nature. We conclude that it did not and, therefore, affirm.
McDevitt was employed by the Hospital as a maintenance man when he injured his back in a work-related accident on August 23, 1969. On October 15, 1969, McDevitt filed a claim petition, and, following several hearings, a referee issued a decision, dated July 31, 1973, which contained the following pertinent findings of fact:
"1. That on August 23, 1969, the claimant was engaged in the employ of the defendant as a maintenance man at a salary of $107.10 per week.
. . . .
"4. That on the aforesaid day, while in the course of his employment with the defendant, the claimant was tilting a 50 gallon drum filled with chemicals to pour some of the contents into a jar when the drum slipped and fell, causing claimant to twist and fall, resulting in a right ilio-lumbar ligamentous sprain and aggravating a prior back injury.
"5. That as a result of this occurrence, the claimant became totally disabled as of August 25, 1969, and continued to remain so disabled up to the time of the hearing and may continue into the future for an indefinite period."
Based upon these findings, the referee awarded McDevitt compensation for total disability. The Hospital appealed to the Board, which affirmed the referee's decision.
The Hospital contends that the Board erred as a matter of law in awarding compensation for total disability because the Hospital proved by unrebutted testimoney that there was work available which McDevitt was physically and mentally capable of performing. See Don-Mark Realty Company v. Milovec, 11 Pa. Commw. 448, 314 A.2d 349 (1974). See also Barrett v. Otis Elevator Company, 431 Pa. 446, 246 A.2d 668 (1968) and Petrone v. Moffat Coal Company, 427 Pa. 5, 233 A.2d 891 (1967).
In a case such as this, where the party with the burden of proof has prevailed below, our scope of review is limited to determining whether constitutional rights were violated, an error of law was committed or whether any necessary finding of fact was not supported by substantial evidence. David v. Bellevue Locust Garage, 12 Pa. Commw. 602, 317 A.2d 341 (1974).
The Hospital contends that this case should be controlled by our decision in Don-Mark, supra. We do not agree. Don-Mark stands for the principle that a claimant may not recover compensation for total disability if his employer succeeds in proving (1) that the claimant is capable of doing light work of a general nature and (2) that such work is in fact available to the claimant. See Barrett, supra, and Petrone, supra. The Hospital offered the testimony of an employment consultant to show that light work of a general nature was available to McDevitt. This testimony was not rebutted, and, therefore, the Hospital did prove that light work is available to McDevitt. The Hospital did not prove, however, that McDevitt was capable of doing light work which was available to him.
McDevitt was 65 years old at the time of the hearing in this case. He has an eighth-grade education, and a history of back trouble prior to the accident in this case. The referee had to consider these facts in determining the extent of McDevitt's disability. Rosenau Brothers, Incorporated v. Workmen's Compensation Appeal Board, 10 Pa. Commw. 462, 311 A.2d 160 (1973). McDevitt's medical witness testified that, in his opinion, McDevitt was "not employable within his normal and ordinary types of previous employment and previous abilities to do work." He also testified that McDevitt's back could not stand up under any repetitive physical effort, whether it involved "heavy bending and lifting" or "lighter bending and lifting on a continuing basis." According to his medical witness, McDevitt could only work in a "very strictly tailored carefully outlined, very carefully environmented situation." The referee apparently decided that the light work which was available was not the type of "strictly tailored" and "carefully environmented" work which McDevitt might be able to perform. We conclude that the testimony of McDevitt's medical witness is sufficient to support the referee's finding of total disability.
As is usual in this type of case, the testimony of the medical experts was in conflict. The Hospital's expert testified that McDevitt was capable of performing light work of a general nature. The referee decided to disregard the testimony of the Hospital's expert, and this Court is bound by that decision. See Universal Cyclops v. Krawczynski, 9 Pa. Commw. 176, 305 A.2d 757 (1973).
The record indicates that McDevitt is capable of driving an automobile and that he has remained active in a church-related organization. The Hospital argues that McDevitt's volunteer work is conclusive proof that he is capable of light work. We disagree. The volunteer work does not necessarily conflict with the referee's finding of total disability. Such work obviously falls within the type of work which his medical expert stated McDevitt might be able to perform.
In summary, we hold that the referee's finding of total disability is supported by substantial evidence and, therefore, we affirm.
Accordingly we
ORDER
AND NOW this 31st day of July, 1975, Parkview Hospital and/or the Pennsylvania Manufacturer's Association Insurance Company, are hereby ordered to pay compensation for total disability to John P. McDevitt, at the rate of $60.00 per week, beginning August 25, 1969, and continuing until such time as McDevitt's disability ceases or changes in extent, in accordance with the provisions of the Pennsylvania Workmen's Compensation Act, Act of June 2, 1915, P.L. 736, as amended, 77 P. S. § 1 et seq.
The above award is to bear interest at the rate of 6% per annum on all deferred payments of compensation.