Opinion
Argued: February 3, 1982
May 21, 1982.
Workmen's compensation — Scope of appellate review — Error of law — Violation of constitutional rights — Findings of fact — Substantial evidence — Recurrence of symptoms — Continuance — Absent witness.
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 an error of law was committed, constitutional rights were violated or findings of fact were unsupported by substantial evidence. [576]
2. Unequivocal medical evidence confirming that symptoms of a claimant displayed during treatment for compensable injury had now recurred supports an award reinstating workmen's compensation benefits. [576-7]
3. Due process principles are not violated by workmen's compensation authorities in denying an employer a continuance requested to obtain the testimony of a particular witness when the proceedings had previously been continued several times for the same purpose and the employer failed to depose or subpoena the witness or establish that the evidence could not be obtained from another source. [577]
Argued: February 3, 1982, before President Judge CRUMLISH and Judges BLATT and MacPHAIL, sitting as a panel of three.
Appeal, No. 610 C.D. 1981, from the Order of the Workmen's Compensation Appeal Board in case of Francis Nagle v. Hoovers Sani-Dairy Products, No. A-79828.
Petition to the Department of Labor and Industry to reinstate workmen's compensation benefits. Reinstatement ordered. Employer appealed to the Workmen's Compensation Appeal Board. Order affirmed. Employer appealed to the Commonwealth Court of Pennsylvania. Held: Affirmed.
Denver E. Wharton, with him Robert J. Wharton, Kaminsky, Kelly, Wharton Thomas, for petitioners.
Raymond J. Zadzilko, with him Arnold D. Smorto, Smorto Persio, for respondents.
Hoover's Sani-Dairy Products (Hoover) and its insurer appeal a decision of the Workmen's Compensation Appeal Board (Board) which affirmed a referee's decision to reinstate benefits to claimant Francis Nagle.
The claimant injured his back while performing services for Hoover on March 20, 1978 and was paid benefits under a supplemental agreement entered into between the parties on May 23, 1978 for total disability. On December 4, 1978 he accepted a job with Shaner Brothers Oil Company (Shaner Brothers) which required no heavy lifting and his benefits were then suspended. On March 5, 1979, however, he quit this job and soon thereafter filed the instant reinstatement petition alleging that he could not perform his duties at Shaner Brothers because of a recurrence of his March 20, 1978 injury at Hoover's. Hoover, on the other hand, alleged that it was relieved of responsibility because a new injury had occurred while the claimant was employed by Shaner Brothers. The referee, relying on the testimony of the claimant's physician, found that the claimant did in fact establish that he had a recurrence of the March 20, 1978 injury and accordingly granted benefits. The Board, without taking additional evidence, affirmed.
The claimant, according to the petitioners' brief, was a driver and oil salesman.
The law in this situation is well-settled. If the claimant's current disability is a result of a recurrence of his March 20, 1978 injury then Hoover, who was the employer at the time of such original injury, is responsible. See, e.g., Lasick v. Consumers Mining Co., 182 Pa. Super. 414, 128 A.2d 144 (1956); Cambria County Commissioners v. Workmen's Compensation Appeal Board, 57 Pa. Commw. 409, 426 A.2d 249 (1981). But, of course, if there has been a new injury or an aggravation of a pre-existing condition related to the new employment, then the current employer, Shaner Brothers, is responsible. See Bud Smail Lincoln Mercury v. Workmen's Compensation Appeal Board, 59 Pa. Commw. 638, 430 A.2d 719 (1981).
Where, as here, the party with the burden of proof has prevailed below, our scope of review is limited to a determination of whether or not constitutional rights were violated, an error of law was committed, or the referee's findings of fact were unsupported by substantial evidence. United States Steel Corp. v. Workmen's Compensation Appeal Board, 52 Pa. Commw. 641, 416 A.2d 619 (1980).
Cambria County.
Hoover argues that the necessary findings of fact regarding whether or not the claimant actually had a recurrence of his original injury were unsupported by substantial evidence. Our careful review of the record, however, discloses that the claimant's physician, who had also treated him for his original (March 20, 1978) injury, unequivocally testified that he carefully examined the claimant on April 9, 1979 and concluded that the claimant had had a recurrence of the symptoms he previously exhibited on March 20, 1978.
General Electric Co. v. Workmen's Compensation Appeal Board, 61 Pa. Commw. 511, 434 A.2d 841 (1981).
Hoover next argues that the referee violated its constitutional rights by prematurely closing the record and refusing to grant it a continuance, specifically charging that such action precluded it from securing the testimony of one Mr. Shaner, who was in poor health, and that such testimony would have shown the degree of effort involved by the claimant in his Shaner Brothers' job. We have recognized, of course, that due process principles are not violated by workmen's compensation authorities when they exercise their discretion to deny a requested continuance where an employer had sufficient means and ample time within which it could have accomplished what it says it could accomplish if a continuance were granted. Mrs. Smith Pie Co. v. Workmen's Compensation Appeal Board, 57 Pa. Commw. 274, 426 A.2d 209 (1981); see Workmen's Compensation Appeal Board v. Basalyga, 24 Pa. Commw. 345, 355 A.2d 603 (1976). Here, the record reveals that the referee was most accommodating and did continue this case several times so that Mr. Shaner could be deposed by Hoover, but Hoover failed to depose him. Moreover, Hoover could have but did not subpoena Mr. Shaner nor did it establish or aver in seeking the continuance that the information which it sought from Mr. Shaner could be ascertained only from him and not from his brother and operating partner, from the claimant's co-workers, or from Shaner Brothers' records.
The referee continued or rescheduled the case approximately 12 times in all.
We believe, therefore, that the referee did not abuse his discretion in denying Hoover's request to protect further this matter. And, finding no error of law or necessary fact unsupported by substantial evidence, we will accordingly affirm the order of the Board.
We note that the referee in his findings of fact found that the claimant had incurred a $105.00 expense at the D'Andrea Pharmacy but in his order the referee listed the expense as $530.00 which was identical to the preceding expense on the list. Believing this to be an error of transportation, we will utilize the figure in the referee's factual finding.
ORDER
AND NOW, this 21st day of May, 1982, the order of the Workmen's Compensation Appeal Board in the above-captioned matter is hereby affirmed.
It is further ordered that judgement be entered in favor of the respondent Francis Nagle and against petitioners Hoover's Sani-Dairy Products and Laundry Owners Mutual Liability Insurance Association, at the rate of $185.36 per week beginning March 6, 1979 and continuing in accordance with the provisions of the Act. All deferred payments of compensation shall bear statutory interest in accordance with the Act. Additionally it is ordered that the aforementioned petitioners are directed to pay the following medical expenses:
Blair Orthopedic Associates ................. $1,385.00 1212 Thirteenth Avenue Altoona, PA 16601
Miners Hospital of Northern ................. 238.50 Cambria, Crawford First Spangler, PA 15775
Life Support Products ....................... 530.00 716 Hannah Street Houtzdale, PA 16651
D'Andrea Pharmacy ........................... 105.00 Bigler Ave. N. First St. Spangler, PA
Counsel fees in the amount of twenty (20%) percent of all compensation due is payable to, and the petitioners in the above-captioned matter are directed and ordered to deduct the same and mail to: Arnold D. Smorto, Esquire, 129 S. Center Street, Ebensburg, PA 15931.
Judge MENCER did not participate in the decision in this case.