Opinion
Argued September 16, 1977
November 9, 1977.
Workmen's compensation — Scope of appellate review — Error of law — Findings of fact — Sufficient evidence — The Pennsylvania Workmen's Compensation Act, Act 1915, June 2, P.L. 736 — Petition to terminate agreement — Burden of proof — Violation of constitutional rights — Substantial evidence — Unequivocal medical testimony.
1. Under provisions of The Pennsylvania Workmen's Compensation Act, Act 1915, June 2, P.L. 736, the referee is the ultimate fact-finder, and the Workmen's Compensation Appeal Board, when it takes no evidence, may review the determination of the referee only as to questions of law and to determine whether the findings of fact are supported by competent evidence. [332]
2. An employer seeking to terminate the payment of benefits under a workmen's compensation agreement must prove that disability has ceased. [333]
3. In a workmen's compensation case where the party with the burden of proof prevailed before the fact-finder, 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 were unsupported by substantial evidence. [333]
4. In a workmen's compensation case a determination by the fact-finder that a petition to terminate an agreement should be granted because disability had ceased cannot be disturbed on appeal in the absence of additional evidence when unequivocal medical testimony was produced establishing that the claimant was no longer disabled as a result of the compensable injury and that a possible emotional condition of the claimant had its origin at an unknown time. [333-4]
Argued September 16, 1977, before President Judge BOWMAN and Judges MENCER and BLATT, sitting as a panel of three.
Appeal, No. 1800 C.D. 1976, from the Order of the Workmen's Compensation Appeal Board in case of Juanita Thomas v. Sears, Roebuck Company, No. A-70712.
Petition with Department of Labor and Industry to terminate workmen's compensation agreement. Petition granted. Claimant appealed to the Workmen's Compensation Appeal Board. Agreement reinstated. Petitioner filed petition for review in the Commonwealth Court of Pennsylvania. Held: Reversed. Decision of referee reinstated.
James R. Miller, with him Eugene F. Scanlon, Jr., and Dickie, McCamey Chilcote, for petitioner.
Mark B. Greenblatt, with him James N. Diefenderfer, for respondents.
This appeal has been brought by Sears, Roebuck and Company (Sears) from an order of the Workmen's Compensation Appeal Board (Board) denying Sears' petition for termination of benefits to Juanita Thomas (claimant). The Board had reversed the referee's decision granting the termination petition. Since the referee's determination was supported by competent evidence, our decision in Universal Cyclops Steel Corp. v. Krawczynski, 9 Pa. Commw. 176, 305 A.2d 757 (1973), compels us to reverse the Board's order.
On October 4, 1972, claimant sustained an injury to her right hand while pushing some carts at work. Dr. David Foss, a physician, treated her from the time of the injury until at least March of the following year. Under the terms of an agreement with Sears, claimant received payments for total disability commencing October 5, 1972. In February 1973, Sears filed a termination petition alleging that claimant had recovered from the injury and was able to work.
At hearings before the referee, testimony was given by Dr. Foss, claimant, and Robert Hickey, Ph.D., a clinical psychologist. Over objection, Dr. Hickey opined that claimant suffered from hysterical neurosis, an emotion-related disabling ailment that seemed to be triggered by the injury. On the other hand, Dr. Foss testified that claimant was no longer disabled as a result of the accident in October. He further explained that she had an extosis, a shoulder-bone condition, and a fusion in her neck, both of which preexisted the injury. Conceding that an emotional problem could have been a part of her continuing symptoms, Dr. Foss agreed that if such a condition did exist, he could not positively state at what time it began. Immediately before this testimony, he stated: "At this point in time — we are in February of '73 — we are no longer treating her [October 1972] injury. That was healed. We are treating a problem which preexisted the accident and it is not related to the injury."
The referee found that claimant had completely recovered from her injuries as of January 15, 1973 and granted Sears' petition. In reversing the referee, the Board reasoned that Sears had not carried its burden of showing that all symptoms from the October injury had ended. The Board was of the view that Dr. Foss's testimony concerning the possibility of an emotional problem was especially persuasive. Thereafter, Sears appealed to our Court.
Universal Cyclops, supra, made it clear that under the 1972 amendments to The Pennsylvania Workmen's Compensation Act, Act of June 2, 1915, P.L. 736, as amended, 77 P. S. § 1 et seq., the referee is the ultimate fact-finder where the Board does not take additional evidence. Review by the Board in such a situation is limited to questions of law and to a determination of whether the findings of fact are supported by competent evidence. 9 Pa. Commw. at 182, 305 A.2d at 761.
In a termination proceeding, the employer has the considerable burden of proving that disability has ceased. Workmen's Compensation Appeal Board v. F. W. Woolworth Co., 19 Pa. Commw. 413, 338 A.2d 784 (1975). Where the party with the burden of proof prevailed before the fact-finder, as Sears did here, our scope of review is limited to a determination of whether constitutional rights were violated, an error of law was committed, or any necessary finding of fact was unsupported by substantial evidence. Shoup v. The Allegheny Lutheran Home, 25 Pa. Commw. 528, 360 A.2d 278 (1976).
Here, the finding by the referee that claimant had recovered from the October injury was supported by the direct, unequivocal testimony of Dr. Foss, who had treated her throughout the period in question. Dr. Foss specifically stated that she was no longer disabled. A reading of his entire testimony reveals that, while he may not have known when claimant's possible emotional condition commenced, he was definitely of the opinion that she was no longer disabled in any way from the October injury. Since Dr. Foss's testimony was competent, the Board acted improperly in reversing the referee where additional evidence was not taken. See Universal Cyclops, supra.
Even if Dr. Foss's testimony were viewed as inconsistent on the question of whether all disability had ceased, this was a question of credibility resolved against claimant. See Workmen's Compensation Appeal Board v. Pittsburgh Electrical Insulation Co., 31 Pa. Commw. 170, 375 A.2d 872 (1977).
Claimant's reliance on F. W. Woolworth Co., supra, is misplaced. There, the claimant began to experience a psychosomatic flapping of her wrist during therapy for a work-related injury. The referee denied the employer's petition for termination, finding that the flapping was a result of a work accident, and the Board affirmed. We affirmed, noting that the employer presented no proof of the absence of a causal connection between the injury and the flapping. Unlike Woolworth, we are faced here with a situation where there is unequivocal medical testimony supporting the employer's burden of proof and the fact-finder granted the petition for termination.
Therefore, we will reverse the order of the Board.
ORDER
AND NOW, this 9th day of November, 1977, the order of the Workmen's Compensation Appeal Board, filed September 28, 1976, directing the resumption of compensation to Juanita Thomas is reversed, and the decision of the referee granting the prayer of the termination petition, effective January 15, 1973, is hereby reinstated.