Opinion
Argued September 28, 1978
December 7, 1978.
Workmen's compensation — Date of disability — The Pennsylvania Workmen's Compensation Act, Act 1915, June 2, P.L. 736 — Burden of proof — Scope of appellate review — Words and phrases — Capricious disregard of competent evidence — Speculative evidence.
1. An employer disputing the date of an employe's disability, which is determinative of the proper apportionment of liability between the employer and the Commonwealth under The Pennsylvania Workmen's Compensation Act, Act 1915, June 2, P.L. 736, has the burden of proving the actual date of disability. [105]
2. In a workmen's compensation case where the party with the burden of proof has not prevailed below, the Commonwealth Court of Pennsylvania will consider only whether the workmen's compensation authorities have capriciously disregarded competent evidence, which involves the wilful, deliberate disbelief of an apparently trustworthy witness, whose testimony one of ordinary intelligence would not possibly challenge. [105-6]
3. It is not a capricious disregard of competent evidence for a workmen's compensation referee to reject speculative medical testimony which attempts to establish a disability date as occurring fourteen months prior to the medical examination conducted by the witness. [106]
Argued September 28, 1978, before Judges CRUMLISH, JR., DiSALLE and MacPHAIL, sitting as a panel of three.
Appeal, No. 1898 C.D. 1977, from the Order of the Workmen's Compensation Appeal Board in case of Steve Zuro v. Jones Laughlin Steel Corporation and Commonwealth of Pennsylvania, No. A-73027.
Petition with the Department of Labor and Industry for disability benefits. Benefits awarded. Commonwealth appealed to the Workmen's Compensation Appeal Board. Case remanded. New award filed. Employer appealed to the Workmen's Compensation Appeal Board. Award affirmed. Employer appealed to the Commonwealth Court of Pennsylvania. Held: Affirmed.
Raymond F. Keisling, with him Will Keisling, for petitioner.
Sandra Christianson, Assistant Attorney General, with her James N. Diefenderfer, for respondents.
Jones Laughlin Steel Corporation (Employer) appeals from a decision of the Workmen's Compensation Appeal Board affirming a referee's award of compensation to Steve A. Zuro (Claimant) under The Pennsylvania Workmen's Compensation Act (Act), Act of June 2, 1915, P.L. 736, as amended, 77 P. S. § 1 et seq., and the assessment of 50% of the liability therefor on both the Employer and the Commonwealth of Pennsylvania. Employer contends that the evidence presented compels the conclusion that Claimant did not become totally disabled on September 6, 1974, as was adjudged below, but rather that he was totally disabled prior to July 1, 1974, and that under Section 305.1 of the Act, added by Section 2 of the Act of December 6, 1972, P.L. 1627, 77 P. S. § 411.1, the Commonwealth should be required to pay 75% of the compensation due.
Section 305.1 provides in pertinent part:
Any compensation payable under this act for . . . coal-worker's pneumoconiosis . . . shall be paid as follows: if the disability begins between July 1, 1973 and June 30, 1974, inclusive, the employer shall pay twenty-five per centum and the Commonwealth seventy-five per centum; if the disability begins between July 1, 1974, and June 30, 1975, inclusive, the employer shall pay fifty per centum and the Commonwealth fifty per centum. . . .
The sole issue raised by this appeal is whether the referee's conclusion as to when the total disability occurred is supported by the evidence. It has been held that where an employer disputes the date of disability, the employer, and not the Commonwealth, must bear the burden of proving the actual date. Gateway Coal Co. v. Workmen's Compensation Appeal Board, 36 Pa. Commw. 608, 612, 388 A.2d 1122, 1124 (1978).
Since the Employer was adjudged by the fact finder not to have met this burden, our scope of review is limited to a consideration of whether the referee has capriciously disregarded competent evidence in finding that the Claimant's total disability began on September 6, 1974, and not before. As was held in Gateway, this standard involves a willful, deliberate disbelief of an apparently trustworthy witness, whose testimony one of ordinary intelligence would not possibly challenge.
In determining the date when Claimant's disability arose, the referee specifically relied upon a doctor's medical report which concluded that Claimant was totally disabled as of September 6, 1974, the date of examination, but which made no reference to when the disability began. Employer relies upon the statement of another doctor, taken by interrogatories, which indicated that Claimant was disabled as of November 13, 1974, the date of his examination, but which went on to state that "within a reasonable degree of medical certainty" no changes had occurred in Claimant's condition since August of 1973.
Insofar as the latter opinion was rendered fully fourteen months after Claimant's last day of work, we are compelled to conclude that it is, to some extent, necessarily speculative. We cannot find that the referee's disregard of that portion of this medical testimony was capricious. We therefore affirm the order of the Workmen's Compensation Appeal Board.
ORDER
AND NOW, this 7th day of December, 1978, the order of the Workmen's Compensation Appeal Board dated September 2, 1977, affirming a referee's award of benefits to Steve A. Zuro is hereby affirmed and judgment is entered in his favor. The employer, Jones Laughlin Steel Corporation, and the Commonwealth of Pennsylvania, Department of Labor and Industry, Bureau of Occupational Injury and Disease Compensation, are therefore ordered to pay compensation to Steve A. Zuro at the rate of $100.00 per week beginning September 6, 1974, and continuing into the indefinite future. Of the aforementioned $100.00 weekly compensation, the Commonwealth of Pennsylvania shall be liable for the payment of fifty percent (50%) thereof, or $50.00 per week, and the employer, Jones Laughlin Steel Corporation, shall be liable for the remaining fifty percent (50%) or $50.00 per week.
The above award against the employer only shall bear interest on all deferred payments of compensation at the statutory rate of ten percent (10%) per annum.
The Commonwealth of Pennsylvania and Jones Laughlin Steel Corporation are further directed to pay attorney fees in the amount of twenty percent (20%) of the entire award as approved by the Workmen's Compensation Appeal Board.