Opinion
Argued May 9, 1975
July 15, 1975.
Workmen's compensation — Petition to set aside final receipt — The Pennsylvania Workmen's Compensation Act, Act 1915, June 2, P.L. 736 — Burden of proof — Scope of appellate review — Violation of constitutional rights — Error of law — Findings of fact — Substantial evidence — Causation — Medical testimony — Aggravation of preexisting condition — Speculation — Irrelevant evidence — Availability of work within the employe's capabilities.
1. In an action to set aside a final receipt under The Pennsylvania Workmen's Compensation Act, Act 1915, June 2, P.L. 736, the burden is upon the claimant to prove conclusively that all disability attributed to the prior accident has not terminated. [263]
2. In a workmen's compensation case where the compensation authorities have found in favor of the party with the burden of proof, review by the Commonwealth Court of Pennsylvania is to determine whether constitutional rights were violated, an error of law was committed or a necessary finding of fact was unsupported by substantial evidence. [263]
3. A finding of a causal connection between a present disability and a compensable injury is sufficiently supported when medical testimony indicates that the present disability resulted from surgery which became necessary when the compensable injury aggravated a preexisting condition, and what the claimant's condition might have been without the intervention of the compensable injury is speculative and irrelevant. [264]
4. In a workmen's compensation case when it is established that the injured employe can no longer perform his prior job, the burden falls upon the employer to prove the availability of work which the claimant is capable of performing, and such proof need not include evidence of an actual job offer but only of the availability of such jobs within the relevant labor market. [264-5]
Argued May 9, 1975, before Judges CRUMLISH, JR., WILKINSON, JR., and BLATT, sitting as a panel of three.
Appeal, No. 1659 C.D. 1974, from the order of the Workmen's Compensation Appeal Board in case of Joseph Labutis v. Universal Cyclops Specialty Steel Division of Cyclops Corporation, No. A-68449.
Petition with Department of Labor and Industry to set aside final compensation receipt. Petition granted. Employe awarded compensation for total disability. Employer appealed to the Workmen's Compensation Appeal Board. Award affirmed as modified. Employer appealed to the Commonwealth Court of Pennsylvania. Held: Affirmed.
Harold V. Fergus, Jr., with him Fergus, Martin and Fergus, for appellant.
Alexander J. Pentecost, with him James N. Diefenderfer, for appellees.
This is a direct administrative appeal from an order of the Workmen's Compensation Appeal Board affirming a referee's decision setting aside a final receipt executed by claimant, Joseph Labutis, and reinstating total disability payments to claimant under a supplemental compensation agreement.
Claimant suffered an accident in the course of his employment with Appellant on April 1, 1968 when he slipped into a pit and injured his back. The parties thereafter entered into a compensation agreement and supplemental agreements for total disability payments for various periods throughout 1968. On January 9, 1969, claimant executed a final receipt. Claimant was hospitalized in May of 1969 for a laminectomy and spinal fusion. Alleging total disability as a result of this operation which, in turn, was causally related to the April 1968 accident, claimant filed a claim petition in July of 1969 which was subsequently amended to a petition to set aside a final receipt. On April 12, 1974 the referee granted the petition and reinstated compensation as of May 11, 1969, and on appeal, the Board affirmed. We similarly affirm.
In an action to set aside a final receipt under Section 434 of the Pennsylvania Workmen's Compensation Act, Act of June 2, 1915, P.L. 736, as amended, 77 P. S. § 1001 (Supp. 1974-1975), the burden is upon the claimant to prove conclusively that all disability attributable to the prior accident has not, in fact, terminated. Where, as here, the referee has found in favor of the party with the burden of proof and the Board has not taken additional evidence, our review is limited to a determination of whether or not constitutional rights were violated, an error of law was committed, or any necessary findings of fact made by the referee were unsupported by substantial competent evidence. Universal Cyclops v. Workmen's Compensation Appeal Board, 13 Pa. Commw. 375, 320 A.2d 449 (1974).
Appellant initially contends that claimant's medical testimony was not sufficiently unequivocal to establish the necessary causal relationship between his accident in April 1968 and his present total disability occurring after his hospitalization in May of 1969. We disagree. Dr. John A. Perri, an orthopedic surgeon and claimant's attending physician, testified that claimant suffered from degenerative arthritis at levels L-4 and L-5 dating back to at least 1965 when two discs were surgically removed; that the injury sustained in 1968 was the precipitating and aggravating factor which necessitated further surgery on this pre-existing condition; and that the May 1969 surgery — a laminectomy and spinal fusion at L-4 and L-5 and L-5 to S-1 — resulted in his total disability. Appellant argues that this testimony was rendered equivocal by the doctor's frank answers on cross-examination that he could not say whether or not claimant would be in the same condition were it not for the accident. We agree with the Board that this response to a highly speculative and hypothetical question was irrelevant in light of this witness's positive testimony that the 1968 accident did, in fact, aggravate and precipitate a pre-existing degenerative condition, and that the injury thus sustained necessitated the May 1969 surgery. Since the 1968 accident is not disputed, the injury resulting therefrom is compensable though in part attributable to a pre-existing condition. See Stump v. Follmer Trucking Co., 448 Pa. 313, 292 A.2d 294 (1972); Czankner v. Sky Top Lodge, Inc., 13 Pa. Commw. 220, 308 A.2d 220 (1973).
Finally, appellant argues that the referee erred in finding claimant totally disabled after it had presented evidence of the availability of light work for which claimant was physically qualified. Because claimant's physician testified that his disability precluded a continuation in his prior job as a welder, the burden of proof was on appellant to establish that other positions for which claimant was qualified were available to him. Barrett v. Otis Elevator Co., 431 Pa. 446, 246 A.2d 668 (1968); Northern Metal Co. v. Workmen's Compensation Appeal Board, 14 Pa. Commw. 283, 320 A.2d 453 (1974). The employer need not prove an actual job offer, only that jobs within a claimant's physical capacity and qualifications are available within the relevant labor market. Don-Mark Realty Co. v. Milovec, 11 Pa. Commw. 448, 314 A.2d 349 (1974); Matrunics v. Ruffsdale Coal Company, Inc., 6 Pa. Commw. 420, 295 A.2d 629 (1972).
Appellant presented an employment specialist who testified that there were five watchman's jobs available, a position which claimant's physician had previously stated claimant was capable of performing. One such job was described as a "fire watch" at a construction site, allegedly involving limited climbing or lifting. Dr. Perri, however, qualified his opinion by the observation that he would have to review the specific duties of each watchman position before recommending claimant for it. The claimant, in turn, testified that because of his back condition he cannot stand for more than a half-hour or walk more than fifty yards, and even after this limited activity he must lie down for two hours. It is apparent to us that the referee accepted this evidence in finding that appellant had failed to prove that claimant was physically able to work as a watchman, and it is clearly sufficient to rebut appellant's evidence of the availability of such jobs.
Consistent with the foregoing, we enter the following
ORDER
AND NOW, July 15, 1975, the appeal of Universal Cyclops Specialty Steel Division of Cyclops Corporation is dismissed; and said Appellant and/or Pennsylvania Manufacturers' Association Insurance Company are directed to pay Joseph Labutis total disability compensation at the rate of $60.00 per week beginning May 11, 1969 into the indefinite future, together with interest at the rate of 6% per annum on all deferred payments, all within the limits of the Pennsylvania Workmen's Compensation Act. Said defendants are further ordered to pay Aetna Casualty and Surety Company, as subrogation, the sum of $2,497.72; and to pay Alexander J. Pentecost, Esq., attorney for Joseph Labutis, a sum equal to 10% of all past and future compensation becoming due claimant on or after May 11, 1969 as attorney's fees.