Opinion
Argued March 3, 1982
August 27, 1982.
Workmen's compensation — Burden of proof — Scope of appellate review — Evidence.
1. In a proceeding to terminate or suspend workmen's compensation benefits, the employer has the burden of showing that the claimant's disability has ended or has been reduced and that work is available to the claimant that claimant is capable of performing. [480]
2. In a workmen's compensation case when the party with the burden of proof has prevailed before the Workmen's Compensation Appeal Board, review by the Commonwealth Court of Pennsylvania is limited to determining whether constitutional rights were violated or an error of law committed or whether any necessary finding of fact was unsupported by substantial evidence. [481]
3. In a workmen's compensation case in which no additional evidence is taken by the Workmen's Compensation Appeal Board, the referee is the ultimate factfinder on the credibility and weight of the evidence; the referee may accept or reject the testimony of any witness in whole or in part and, if the evidence accepted is such as a reasonable mind might accept to support a conclusion, his findings cannot be disturbed by the Commonwealth Court of Pennsylvania. [481]
Argued March 3, 1982, before President Judge CRUMLISH, JR. and Judges BLATT and DOYLE, sitting as a panel of three.
Appeal, No. 1122 C.D. 1981, from the Order of the Workmen's Compensation Appeal Board in the case of Alfred Schiavo v. Frank's Beverages, No. A-80043.
Petition with the Department of Labor and Industry for workmen's compensation benefits. Benefits awarded. Employer filed modification petition. Modification granted. Claimant appealed to the Workmen's Compensation Appeal Board. Appeal denied. Claimant appealed to the Commonwealth Court of Pennsylvania. Held: Affirmed.
Gerald J. Haas, for petitioner.
Martin J. Fallon, Jr., Swartz, Campbell Detweiler, for respondents.
Alfred Schiavo appeals a Workmen's Compensation Appeal Board order affirming the referee's modification of his benefits from total to partial disability compensation. We affirm.
Benefits were reduced from $106 per week to $57.26 perweek.
Frank's Beverages employed Schiavo for 13 years when, on July 18, 1974, he injured his lower back, sustaining a herniated disc requiring surgical repair in June 1976. His treatment terminated in early 1977. Schiavo's total disability payment was reduced to partial disability.
Claimant's testimony is inconsistent as to whether his surgeon, upon discharge from his service, recommended that he look for work. See N.T. 7/23/79; pages 13-14.
In a proceeding to terminate or suspend workmen's compensation benefits, the employer, as the moving party, has the burden of showing that the claimant's disability has ended or has been reduced and that (1) work is available to the claimant and (2) claimant is capable of doing such work. Main Line Convertible v. Workmen's Compensation Appeal Board, 63 Pa. Commw. 467, 439 A.2d 1250 (1981). Where, as here, the party with the burden of proof has prevailed below, review by this Court is limited to determining whether constitutional rights were violated, an error of law was committed, or any necessary finding of fact was unsupported by substantial evidence. Lehman v. Workmen's Compensation Appeal Board, 64 Pa. Commw. 381, 439 A.2d 1362 (1982).
Frank's Beverages offered the deposition of Dr. Friedman, a board-certified orthopedic surgeon, and the testimony of Mr. Wolf, a vocational expert.
Mr. Wolf is the Executive Director of the Abilities Center of Southern New Jersey, a private non-profit vocational rehabilitation center.
Schiavo argues that the referee erred in relying on Wolf's conclusions since they were based on assumptions not found in the record. We disagree. At the July 23rd hearing, Wolf testified, in response to a hypothetical question which included Schiavo's physical limitations as delineated in Dr. Friedman's deposition, that there was available work for Mr. Schiavo.
Since no additional evidence was taken by the Board, the referee is the ultimate factfinder on the credibility and weight of the evidence. City of Scranton, Department of Fire v. Workmen's Compensation Appeal Board, 43 Pa. Commw. 151, 401 A.2d 889 (1979). Moreover, the referee, in the exercise of his discretion, may accept or reject the testimony of any witness in whole or in part and, if the evidence thus accepted is such as a reasonable mind might accept to support a conclusion, his findings cannot be disturbed by this Court. American Refrigerator Equipment Co. v. Workmen's Compensation Appeal Board, 31 Pa. Commw. 590, 377 A.2d 1007 (1977).
The referee found the medical testimony to be both competent and credible and that there was available work in the job market which Schiavo could perform within his physical limitations. He concluded that Frank's met its burden and consequently reduced Schiavo's benefits. These conclusions are supported by the record.
Schiavo's argument that the referee committed reversible error by calculating the average weekly wage in a manner inconsistent with Section 304(d) of The Workmen's Compensation Act, Act of June 2, 1915, P.L. 736, as amended, 77 P. S. § 582(d), is, totally without merit. In fact, it is Schiavo's, not the employer's, calculation that is inconsistent with the Act.
Affirmed.
ORDER
The order of the Workmen's Compensation Appeal Board, Decision No. A-80043 dated April 23, 1981, is hereby affirmed.
Judge MENCER did not participate in the decision in this case.