Summary
In Cyclops the injury was the gradual diminution of hearing to the point that the loss was compensable, caused by the claimant's total and cumulative exposure to a heavy noise level over a period of forty years.
Summary of this case from Reynolds v. W.C.A.BOpinion
Argued October 30, 1975
November 25, 1975.
Workmen's compensation — Petition to modify agreement or award — Burden of proof — Change in condition — Credibility — Conflicting medical evidence — Past medical testimony — Personal history.
1. One seeking to modify a workmen's compensation agreement or award has the burden of proving a change in conditions justifying the modification sought. [93]
2. In a workmen's compensation case it is for the referee as fact finder to judge the credibility of evidence and to weigh conflicting medical testimony. [93]
3. Medical testimony is not incompetent or insufficient to support a finding of a change of condition in a workmen's compensation case simply because the medical witness was personally unfamiliar with the claimant's previous condition, when the witness did have the claimant's own personal statement as to his prior condition and the referee had the past testimony of other experts as to the claimant's former condition for comparison with the present findings of the witness. [94]
Argued October 30, 1975, before President Judge BOWMAN and Judges ROGERS and BLATT, sitting as a panel of three.
Appeal, No. 564 C.D. 1974, from the Order of the Workmen's Compensation Appeal Board in case of Pete Mahoric v. Universal Cyclops, No. A-67664.
Petition with Department of Labor and Industry for review of compensation agreement. Total disability benefits awarded. Employer appealed to the Workmen's Compensation Appeal Board. Appeal dismissed. Employer appealed to the Commonwealth Court of Pennsylvania. Held: Affirmed.
Harold V. Fergus, Jr., with him Fergus, Martin Fergus, for appellant. Alexander J. Pentecost, with him James N. Diefenderfer, for appellees.
On November 20, 1969, appellee suffered a compensable accident while working for appellant. The parties entered into a compensation agreement resulting in payment for total disability. Appellant thereafter filed a termination petition alleging appellee could return to work as of August 30, 1970. The petition was dismissed and compensation continued on the basis of fifty percent partial disability. On February 16, 1972, appellee filed a review petition alleging he was again totally disabled. A hearing was held on May 15, 1972, after which the referee returned the appellee to total disability benefits retroactive to February 26, 1972. The Workmen's Compensation Appeal Board affirmed the referee's decision and the question is now on appeal to this Court.
Appellant contends that there is no evidence that the appellee's condition has changed from partial disability. A party seeking to modify workmen's compensation benefits has the burden of proving a change in conditions justifying the modification sought. Holman v. Workmen's Compensation Appeal Board, 17 Pa. Commw. 248, 329 A.2d 919 (1975); Henderson v. Air Master Corporation, 2 Pa. Commw. 275, 276 A.2d 581 (1971). In this case, the referee found "that the claimant has met the burden imposed by the Workmen's Compensation Act, as amended, in proving a recurrence of total disability. . . ."
The referee is the judge of the credibility of testimony and his factual findings must be affirmed if supported by competent evidence. Dunlap v. Workmen's Compensation Appeal Board, 17 Pa. Commw. 19, 330 A.2d 555 (1975); Universal Cyclops Steel Corporation v. Krawczynski, 9 Pa. Commw. 176, 305 A.2d 757 (1973).
A review of the record reveals conflicting testimony concerning an increase in the degree of appellee's disability. Appellee's medical witness, Dr. Samuel Sherman, testified in support of the review petition. Appellant produced contrary testimony from its medical expert, Dr. Charles W. Vates.
Appellant contended Dr. Sherman was not competent to testify as to a change in condition in that he had no knowledge of his prior condition. However, Dr. Sherman had appellee's own personal statement of his history and the referee had the past testimony of other medical experts to compare to Dr. Sherman's statement of appellee's present condition. Additionally, the appellee testified to increased medical problems and a worsening of his condition.
As is his duty in cases of conflicting testimony, the referee reviewed the record and made a determination supported by competent evidence. As was the Workmen's Compensation Appeal Board, we are bound to affirm.
We, therefore, enter the following
ORDER
NOW, November 25, 1975, the order of the Workmen's Compensation Appeal Board, dismissing the appeal of Universal Cyclops, dated April 11, 1974, is hereby affirmed.