Opinion
Argued May 11, 1973
June 7, 1973.
Workmen's compensation — Petition to terminate agreement — Burden of proof — Disability — Scope of appellate review — Capricious disregard of competent evidence — Inconsistent testimony.
1. An employer seeking to terminate a workmen's compensation agreement has the burden of proving the cessation or modification of disability. [251]
2. In a workmen's compensation case where the Workmen's Compensation Appeal Board finds against the party having the burden of proof, such decision will be reversed on appeal only upon a showing that the Board capriciously disregarded the evidence. [252]
3. The fact that testimony was inconsistent or inclusive is not a proper reason to reverse a decision of the Workmen's Compensation Appeal Board which was against the party having the burden of proof. [252]
Argued May 11, 1973, before Judges CRUMLISH, JR., WILKINSON, JR., and ROGERS, sitting as a panel of three.
Appeal, No. 8 C.D. 1973, from the Order of the Workmen's Compensation Appeal Board in case of Michael Pohar v. Penn Paper and Stock Company and General Accident and Fire and Life Assurance Corp., Insurance Carrier, No. A-65492.
Petition with Department of Labor and Industry to terminate workmen's compensation agreement. Petition dismissed. Employer appealed to the Workmen's Compensation (Appeal) Board. Reversed and remanded for appointment and report of impartial medical expert. Petition dismissed. Employer appealed to the Workmen's Compensation Appeal Board. Dismissal affirmed. Employer appealed to the Commonwealth Court of Pennsylvania. Held: Affirmed.
Thomas F. McDevitt, for appellants.
Andrew F. Napoli, with him Cohen, Bellis Verlin, for appellee.
On December 5, 1963, appellee suffered a compensable injury resulting in a compensation agreement of December 31, 1963, under which he was paid for total disability. Appellants, on November 18, 1966, filed a petition for termination, alleging that all disability had ceased as of February 1, 1966. An answer was filed and three hearings were held before the original referee. The original referee dismissed the termination petition but, on appeal, the original Board reversed and remanded for the appointment and report of an impartial medical expert. An impartial medical expert was appointed and submitted a 10-page, single spaced report. He was examined on the report by the attorneys for the parties and by the original referee, the transcript of this testimony covering 53 pages in a 285-page record. After the last hearing, a new referee was appointed who filed a report dismissing the petition. On appeal, a new Board affirmed the determination of the referee and dismissed the appeal. This appeal followed.
We must affirm the decision of the Board.
The law applicable to this case is quite clear and is not in dispute. The appellants have the burden of proving the cessation or modification of disability. Fehr v. Y.M.C.A., Pottsville, 201 Pa. Super. 107, 192 A.2d 143 (1963). When the Board finds against a party having the burden of proof, it will be reversed only if it can be shown that the Board capriciously disregarded the evidence. Barrett v. Otis Elevator Company, 431 Pa. 446, 246 A.2d 668 (1968); State Workmen's Insurance Fund v. Young, 2 Pa. Commw. 423, 276 A.2d 552 (1971).
Appellants had a medical expert and a private investigator testify. Appellee testified and produced two medical experts. It was on this state of the record that the original referee found for appellee and dismissed the petition to terminate, and the original Board reversed and remanded for the report of an impartial expert. Following the report and testimony of the impartial expert, the petition was again dismissed, this time by a new referee. The new referee's decision was affirmed by a new Board.
It is not surprising that a careful review of the entire record shows disagreement between the testimony of appellants' and appellee's experts. Further, it is not surprising to be able to go through the 10-page report of the impartial expert and the 53 pages of his examination and extract apparent inconsistencies. Taken in the light most favorable to the appellants, this could only result in a state of inconclusiveness which would result in a finding against the party with the burden, i.e., against appellants. However, we find in our review of the entire record and especially of the impartial expert's very complete testimony substantial evidence to support the impartial expert's opinion that the appellee is totally disabled and must continue to be so considered until it can be shown there is employment available that could use his limited ability.
Accordingly, we enter the following
ORDER
NOW, June 7, 1973, the order of the Workmen's Compensation Appeal Board is affirmed, and Termination Petition No. 136,653, is hereby dismissed.