Opinion
Argued February 3, 1977
April 18, 1977.
Workmen's compensation — Scope of appellate review — Violation of constitutional rights — Error of law — Findings of fact — Substantial evidence — Credibility — Evidentiary weight — Recurrence of disability from prior injury.
1. In a workmen's compensation case where the party with the burden of proof prevailed below, review by the Commonwealth Court of Pennsylvania is to determine whether constitutional rights were violated, an error of law was committed, or necessary findings of fact were unsupported by substantial evidence, leaving to the fact-finder questions of credibility and evidentiary weight. [605]
2. Findings by the fact-finder in a workmen's compensation case supported by competent medical and lay testimony that a disabling condition suffered by an employe was due to a prior injury rather than to a new injury, will not be disturbed on appeal. [606]
Argued February 3, 1977, before Judges CRUMLISH, JR., WILKINSON, JR. and MENCER, sitting as a panel of three.
Appeal, No. 743 C.D. 1976, from the Order of the Workmen's Compensation Appeal Board in case of Donald B. Transue, Sr. v. Ray Hartman Sons, No. A-70875.
Petition with Department of Labor and Industry to reinstate workmen's compensation agreements. Petition dismissed. Employer and insurance carrier appealed to the Workmen's Compensation Appeal Board. Appeal dismissed. Employer and insurance carrier appealed to the Commonwealth Court of Pennsylvania. Held: Affirmed.
William F. Sweeney, with him David L. Pennington, and Harvey, Pennington, Herting Renneisen, Ltd., for appellants.
Daniel M. Corveleyn, for appellee, Transue.
Raymond F. Lowery, for appellee, Insurance Company of North America.
This appeal comes to us following a decision of the Workmen's Compensation Appeal Board (Board) which affirmed a referee's decision that the disability of Donald B. Transue, Sr. (Claimant) was a recurrence of disability from a prior work-related injury and not the result of a second injury.
Claimant was a mechanic employed by Ray Hartman Sons (Employer) when, on January 18, 1973, he sustained a work-related injury to his back. At the time of the injury, Employer was insured by American Hardware Mutual Insurance Company (Appellant). As a result of the injury, Claimant was hospitalized from January 20 through January 31, 1973, and again during the month of February of that year. Surgery was performed subsequently and, as a result, Claimant was unable to return to work until November 23, 1973. On January 31, 1974, Claimant suffered a further period of work-related disability, also necessitating surgery, which is the subject of this appeal. At the time of this second period of disability, Employer's insurance carrier was the Insurance Company of North America (Appellee).
Appellant contends that the referee's finding of a recurrence of the prior work-related injury, as opposed to a finding of a separate and distinct injury, was not based upon sufficient competent evidence. In workmen's compensation cases where the party with the burden of proof prevailed below, as did Claimant here, review by this Court is limited to a determination of whether constitutional rights were violated, an error of law was committed or a necessary finding of fact was unsupported by substantial evidence. Jones Laughlin Steel Corp. v. Golmitz, 28 Pa. Commw. 25, 367 A.2d 323 (1976). A careful review of the record, leaving questions of credibility and evidentiary weight to the referee, convinces us that the Board did not err in upholding the referee's finding of a recurrence.
The existence of Claimant's total disability, and its indefinite continuation, is not in dispute. Claimant's expert witness, an orthopedic surgeon, testified before the referee that upon Claimant's return to work after surgery for the initial injury, Claimant had not fully recovered, but in fact retained a 35% "physical impairment." Additionally, the doctor characterized Claimant's disability as a recurrent herniation of the same area initially injured in January of 1973. Disc material, according to this witness, protruded in precisely the same area injured by Claimant in the 1973 work-related incident.
In addition to the doctor's testimony, the statements of other witnesses also support the referee's findings. Refuting Claimant's testimony that a fuel tank slipped while they attempted to place it on the floor, giving Claimant an "awful yank," a co-employee stated that the tank did not slip and denied that either of the men had to struggle with it. Moreover, although Claimant alleged that the tank slipped because it was extremely greasy, the co-employee disagreed.
Lastly, the record indicates that Claimant said nothing to his employer about the tank slipping, or any similar incident that day, until two months later.
Since substantial evidence on the record exists to support the finding of the referee, we affirm.
Accordingly, we
ORDER
AND NOW, this 18th day of April, 1977, the decision of the Workmen's Compensation Appeal Board is hereby affirmed.