Opinion
Argued May 8, 1975
July 3, 1975.
Workmen's compensation — Petition to terminate award — Burden of proof — Scope of appellate review — Consistent findings — Capricious disregard of competent evidence — Disability — Medical evidence — Issues not properly raised — The Pennsylvania Workmen's Compensation Act, Act 1915, June 2, P.L. 736 — Power to increase benefits.
1. An employer seeking to modify or terminate a workmen's compensation agreement or award has the burden of proving that the disability of the employe has diminished or ceased. [147]
2. In a workmen's compensation case where the decision of the compensation authorities is against the party with the burden of proof, review by the Commonwealth Court of Pennsylvania is to determine whether the findings are consistent with each other and with the conclusions of law and the order and can be sustained without a capricious disregard of competent evidence. [147-8]
3. In denying a petition to terminate workmen's compensation benefits, a referee does not capriciously disregard competent evidence by determining that disability has not ceased in view of medical testimony that although some manual activities might be performed by the claimant, even mildly demanding physical activity would be impossible. [148]
4. When pursuant to a termination petition the only issue properly before workmen's compensation authorities is whether a condition of partial disability had ceased, the referee has no authority under The Pennsylvania Workmen's Compensation Act, Act 1915, June 2, P.L. 736, to award benefits to the claimant for total disability. [148-9]
Argued May 8, 1975, before Judges KRAMER, MENCER and ROGERS, sitting as a panel of three.
Appeal, No. 1450 C.D. 1974, from the Order of the Workmen's Compensation Appeal Board in case of Robert V. Schmucker v. Dill Construction Company, No. A-68279.
Petition with Department of Labor and Industry by employer and insurance carrier to terminate workmen's compensation agreement. Petition denied and employe awarded compensation for total disability. Employer and insurance carrier appealed to the Workmen's Compensation Appeal Board. Award affirmed and appeal dismissed. Employer and insurance carrier appealed to the Commonwealth Court of Pennsylvania. Held: Affirmed in part and reversed in part.
Robert C. Little, with him Burns, Manley Little, for appellants.
No appearance for appellees.
This is an appeal by the Dill Construction Company (Dill) from an order of the Workmen's Compensation Appeal Board (Board), dated October 17, 1974, which affirmed a referee's denial of Dill's Petition for Termination of benefits. The Board's order also affirmed the referee's award of total disability benefits to Robert V. Schmucker (Schmucker).
Schmucker was injured in a fall on July 8, 1969, and, on September 4, 1969, Schmucker entered into a compensation agreement (for total disability) with Dill and its insurance carrier. Subsequent to this agreement, Dill filed a Petition to Modify the compensation agreement which, after hearing, resulted in a compromise providing for partial disability. These partial disability benefits were awarded in an order of the referee. Apparently believing that Schmucker's condition had further improved, Dill filed a Petition for Termination of benefits, which, after hearing, was denied by the referee on March 1, 1973. For reasons unexplained anywhere in the record, the referee's order not only denied the termination petition, but ordered payment for total disability as well. Dill appealed and the Board remanded for more definitive findings of fact. On remand, the referee again ordered the dismissal of the termination petition and an award of total disability benefits. The Board affirmed and Dill has appealed to us, contending that (1) the referee's findings of fact relevant to the termination petition are not supported by substantial evidence and were the result of a capricious disregard of competent testimony; and (2) that it was error for the referee and the Board to award Schmucker total disability benefits when the only matter formally presented for adjudication was Dill's petition praying for a termination of benefits.
An employer seeking to modify or terminate benefits has the burden of proving that the disability has diminished or ceased. Servomation Corporation v. Workmen's Compensation Appeal Board, 15 Pa. Commw. 199, 325 A.2d 344 (1974). Consequently, our scope of review is as stated by Judge ROGERS in Pomeroy's Inc. v. Workmen's Compensation Appeal Board, 15 Pa. Commw. 270, 271, 325 A.2d 349, 350 (1974):
"Where the decision of the compensation authorities is against the party having the burden of proof, our review is for the purpose of determining whether the findings are consistent with each other and with the conclusions of law and the order and whether the determination below can be sustained without a capricious disregard of competent evidence. Patterson v. Lenart, 9 Pa. Commw. 116, 305 A.2d 778 (1973). We view the evidence in the light most favorable to the party who prevailed below. The fact finder is not required to accept the testimony of any witness even though it is uncontradicted."
With regard to the denial of the termination petition, we are thus limited in this case to determining whether the referee capriciously disregarded competent medical evidence concerning Schmucker's continuing disability. We conclude that he did not, after a careful examination of the record.
Schmucker's medical witness, while equivocating on some matters, consistently offered the opinion that Schmucker was unable to do even mildly demanding physical activity. Dill's argument is based upon this doctor's statement that Schmucker might be able to perform work as a night watchman or plant guard, but it ignores the qualified nature of the responses made by the doctor. For example, while offering the opinion that certain manual activities might be within Schmucker's capacity, the doctor also noted that even walking up stairs might pose a problem for him. This record simply does not warrant our concluding that evidence of a complete recovery was capriciously disregarded.
We do, however, find error in the action below awarding total disability benefits to Schmucker. Without passing judgment on whether Schmucker is, in fact, eligible for such an award, we agree with Dill that the only issue properly before the compensation authorities was that joined by Dill, i.e. whether Schmucker's previously recognized partial disability had ended. The only matter for disposition was Dill's termination petition, Schmucker having made no effort to modify the previous award. The referee has no authority in the Pennsylvania Workmen's Compensation Act, Act of June 2, 1915, P.L. 736, as amended, 77 P. S. § 1 et seq., to increase benefits sua sponte.
Accordingly, we
ORDER
AND NOW, this 3rd day of July, 1975, it is ordered that the order of the Workmen's Compensation Appeal Board in the above-captioned matter, dated October 17, 1974, is reversed insofar as it awards Robert V. Schmucker compensation for total disability; and, it is further ordered that the portion of the order of the Workmen's Compensation Appeal Board which affirmed the referee's denial of the Petition to Terminate benefits filed by the Dill Construction Company and its insurance carrier, the Globe Indemnity Company, is affirmed; and, it is further ordered that the Dill Construction Company and/or its insurance carrier, the Globe Indemnity Company, pay to Robert V. Schmucker compensation for partial disability at the rate of $45.00 per week, from November 17, 1970, representing payment consistent with the terms of the referee in the above-captioned matter issued on April 4, 1971, which order is hereby reinstated.