Summary
In F. W. Woolworth, the original "physical" injury was a cut on the back of the claimant's right hand, and the subsequent psychosomatic disability was an "involuntary, incessant, and unabated flapping of [claimant's] right wrist and hand which had begun during therapy treatment for her injury."
Summary of this case from Cen. Pa. Com. Act. v. W.C.A.BOpinion
Argued May 9, 1975
June 2, 1975.
Workmen's compensation — Petition to terminate agreement — Burden of proof — Disability — The Pennsylvania Workmen's Compensation Act, Act 1915, June 2, P.L. 736 — Scope of appellate review — Consistent findings — Capricious disregard of competent evidence — Medical testimony — Causation — Psychosomatic condition.
1. Under The Pennsylvania Workmen's Compensation Act, Act 1915, June 2, P.L. 736, an employer seeking to terminate a compensation agreement has the burden of proving that the disability of the employe ceased, and such disability is presumed to continue until the contrary is demonstrated. [415]
2. In a workmen's compensation case where the decision of the referee is adverse to the party with the burden of proof and the Workmen's Compensation Appeal Board takes no additional evidence, review by the Commonwealth Court of Pennsylvania is to determine whether the findings of the referee are consistent with each other and with the conclusions of law and the order and can be sustained without a capricious disregard of competent evidence. [416]
3. Medical evidence that a disabling condition exists for which no organic cause has been found is insufficient to establish that a compensation agreement should be terminated in the absence of testimony that no causal connection exists between the compensable injury and the disabling condition. [416]
4. A finding that is unsupported by competent evidence is not the result of a capricious disregard of competent evidence when there is no competent evidence to support a contrary finding. [416]
Argued May 9, 1975, before Judges KRAMER, MENCER and ROGERS, sitting as a panel of three.
Appeal, No. 1672 C.D. 1974, from the order of the Workmen's Compensation Appeal Board in case of Adelia Mialka v. F. W. Woolworth Company, No. A-68649.
Petition with Department of Labor and Industry by employer to terminate workmen's compensation agreement. Petition denied. Employer appealed to the Workmen's Compensation Appeal Board. Denial affirmed. Employer appealed to the Commonwealth Court of Pennsylvania. Held: Affirmed.
James P. Lay, III, for appellant.
Richard H. Scobell, with him James N. Diefenderfer, for appellees.
This is the appeal of F. W. Woolworth Company and its insurance carrier from an order of the Workmen's Compensation Appeal Board (Board) affirming the referee's denial of appellants' petition to terminate a compensation agreement with Adelia Mialka.
Ms. Mialka was injured on June 8, 1968 when, while working as a salesclerk in one of the employer's retail stores, a glass shelf fell, striking and cutting the back of her right hand. A compensation agreement was entered into by the employer, its insurance carrier and Ms. Mialka providing for total disability payments of $40.20 per week, commencing as of August 19, 1968, and for medical and hospital expenses within the limits prescribed by the Workmen's Compensation Act. On May 26, 1970, the appellants filed a petition for termination in which they asserted the cessation of Ms. Mialka's accident-related disability as of February 6, 1970. At the referee's hearing in August, 1971, Ms. Mialka testified as to the occurrence of the accident, the eight doctors she had visited for treatment, the treatment received and the involuntary, incessant, and unabated flapping of her right wrist and hand which had begun during therapy treatment for her injury. The appellants adduced the testimony of one of Ms. Mialka's treating physicians, Dr. Mainzer, a neurological surgeon, who had examined the claimant on February 6, 1970, the date as of which appellants allege Ms. Mialka's disability terminated. Dr. Mainzer described Ms. Mialka as totally disabled but said he could find no organic cause for her condition. He suggested the possibility of a psychosomatic problem but disclaimed any expertise in that field.
Act of June 2, 1915, P.L. 736, as amended, 77 P. S. § 1 et seq.
The referee denied the prayer of the petition for termination, finding that the medical testimony established that the flapping was psychosomatic and that it was as a result of Ms. Mialka's accident of July 8, 1968. The Board affirmed and noted that the carrier had failed to meet its burden of proof by offering no medical testimony to divorce the flapping from the July 8th injury. Appellants have appealed, principally on the asserted ground that the referee's findings relating the flapping to the accident are not supported by competent evidence.
Appellants misapprehend our scope of review. It is only in cases where the party with the burden of proof is successful below that our review focuses on whether the necessary findings of fact are supported by substantial evidence. Banks v. Workmen's Compensation Appeal Board, 15 Pa. Commw. 373, 327 A.2d 404 (1974).
Section 413 of the Workmen's Compensation Act, as amended, 77 P. S. § 772 (Supp. 1974-1975), provides the statutory authority for termination of a compensation agreement. Thereunder, an employer and its carrier petitioning for termination have the burden of proving that disability has ". . . temporarily or finally ceased. . . ." See Tioga Textiles Associates, Inc. v. Workmen's Compensation Appeal Board, 13 Pa. Commw. 492, 319 A.2d 211 (1974); Penn Paper and Stock Co. v. Workmen's Compensation Appeal Board, 9 Pa. Commw. 250, 305 A.2d 740 (1973). The burden is considerable, for disability is presumed to continue until demonstrated otherwise. Lackman v. F. W. Woolworth Company, 205 Pa. Super. 129, 208 A.2d 33 (1965); Fox v. American News Co., 190 Pa. Super. 74, 151 A.2d 670 (1959).
Where, as here, the referee's decision is adverse to the party with the burden of proof and the Board has taken no additional evidence, our task is to determine whether, reviewing the facts in a light most favorable to the party who prevailed below, the referee's findings are consistent with one another and with the conclusions of law and the order in the case and whether the findings can be sustained without a capricious disregard of competent evidence. Pomeroy's, Inc. v. Workmen's Compensation Appeal Board, 15 Pa. Commw. 270, 325 A.2d 349 (1974); Patterson v. Lenart, 9 Pa. Commw. 116, 305 A.2d 778 (1973). See generally Universal Cyclops Steel Corporation v. Krawczynski, 9 Pa. Commw. 176, 305 A.2d 757 (1973).
The employer and its carrier simply failed to carry their burden of proof. As they note in their brief, Dr. Mainzer "never testified that in his opinion it [the flapping] was related [to Ms. Mialka's injury]." Nor did he say it was unrelated. Having presented no proof of the absence of causal connection between the injury and the flapping of the appellee's right hand, the appellants were required to demonstrate cessation of the disability in order to prevail. Their only showing in this regard was that no organic cause can be found for the flapping. This was wholly inadequate. See, e.g., Pomeroy's, Inc. v. Workmen's Compensation Appeal Board, supra; Fox v. American News Co., supra.
Ms. Mialka aptly cites the following language from Barrett v. Otis Elevator Company, 431 Pa. 446, 246 A.2d 668 (1968), in support of affirmance of the instant referee's crucial findings:
"A finding that is completely unsupported by competent evidence does not capriciously disregard competent evidence if there is not competent evidence to support a contrary finding." 431 Pa. at 451, 246 A.2d at 671.
ORDER
AND NOW, this 2nd day of June, 1975, the order of the Workmen's Compensation Appeal Board is affirmed and F.W. Woolworth Company and Travelers Insurance Company, its insurance carrier, are directed to pay to Adelia Mialka, compensation for total disability at the rate of $40.20 per week, as per the compensation agreement of the parties of August 23, 1968, beginning as of May 22, 1970 and continuing thereafter during total disability; together with interest at the rate of six (6%) percent per annum on all unpaid installments from the due date thereof.