4156 Bar Corp. v. Commonwealth

438 A.2d 657, 63 Pa. Commw. 176, 1981 Pa. Commw. LEXIS 1953
CourtCommonwealth Court of Pennsylvania
DecidedDecember 14, 1981
DocketAppeal, No. 2481 C.D. 1980
StatusPublished
Cited by14 cases

This text of 438 A.2d 657 (4156 Bar Corp. v. Commonwealth) is published on Counsel Stack Legal Research, covering Commonwealth Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
4156 Bar Corp. v. Commonwealth, 438 A.2d 657, 63 Pa. Commw. 176, 1981 Pa. Commw. LEXIS 1953 (Pa. Ct. App. 1981).

Opinion

Opinion by

Judge Williams, Jr.,

Appellants, 4156 Bar Corporation and Westmoreland Casualty Company, appeal from an order of the Workmen’s Compensation Appeal Board (Board) affirming a referee’s decision which awarded claimant total disability benefits for a work-related injury.1

Claimant, Bernard Kimmelman, worked as a bartender and manager at 4156 Bar Corporation. Claimant’s duties as a bartender included serving drinks, loading the refrigerator with beer, ordering beer and liquor, lifting and carrying cases of beer and whiskey, making sandwiches, cleaning the kitchen, mopping the floors, and washing glasses. On March 1, 1976, during the course of his employment, claimant, injured his back while lifting a case of beer. Claimant’s injury was diagnosed as an acute disc problem, as a result of which he underwent an operation for the removal of a disc and the insertion of a bone graft in the disc spaces. Thereafter, claimant spent several months healing from his surgical procedure. However, notwithstanding his recuperation, claimant was left unable to perform any activity requiring physical exertion, including those involving repetitive bending or lifting, and/or sitting or driving for periods of time exceeding one hour.

Claimant removed himself from the payroll of the bar, but beginning in July, 1976, he made brief visits to the bar for purposes of collecting the daily receipts and checking on its operation.

Subsequent to claimant’s injury, he applied for workmen’s compensation benefits, alleging that he was permanently and totally disabled due to his back [179]*179ailment. Several referee’s hearings were held and in September, 1977, the referee issued a decision awarding benefits to the claimant and finding him to be totally disabled at that time and into the indeterminate future. Claimant’s employer appealed from that decision and in March, 1978, the Board set aside the referee’s determination and remanded the case to the-referee for clarification of his findings of fact and conclusions of law.

In July, 1978, the referee rendered a second determination, again awarding compensation to the claimant for total disability resulting from the March 1,1976 incident. The referee found that the claimant had established by competent evidence that his work-related injury caused him to be totally disabled. Additionally, the referee found that claimant’s employer failed to establish that claimant had recovered fully or partially from his injury. Furthermore, the referee held that claimant’s employer did not carry its burden of proving that work existed which claimant was capable of performing.

Once again, claimant’s employer filed an appeal from the referee’s decision. In September 1980, the Board affirmed the referee’s decision and dismissed the employer’s appeal. This appeal followed.

The disposition of the instant appeal rests on our resolution of two issues raised by appellants in support of their position. At the outset, appellants argued that no substantial competent evidence of record exists to support the referee’s finding that the claimant was totally disabled from March 1, 1976 and would continue to be totally disabled into the indeterminate future. It is further alleged that the referee and the Board capriciously disregarded substantial evidence, in finding a failure on the part of appellants to sustain their burden of proof with regard to estab[180]*180lishing the availability of work which claimant is capable of performing.

We will begin by addressing ourselves to the issue of claimant’s total disability. In a workmen’s compensation case, the question concerning a claimant’s total disability is one of fact, requiring for its determination medical evidence and a consideration of such factors as the mental outlook, background and education of the claimant, the kind of work the claimant can presently perform, and the availability of such work. Workmen’s Compensation Appeal Board v. McGraw Edison, 20 Pa. Commonwealth Ct. 548, 342 A.2d 445 (1975). Basically, the test to be applied to a claimant alleging total disability is whether that claimant’s work-related injury deprives him of his earning power. Furthermore, total disability is presumed to continue unless and until competent examination and testimony disclose otherwise. Marshall v. City of Altoona, 208 Pa. Superior Ct. 465, 222 A.2d 408 (1966).

In the instant case, the referee found that the claimant had established by competent evidence that he was totally disabled due to his injury of March 1, 1976. The evidence presented by the claimant in that regard was the testimony of Dr. Paul M. Lin. Dr. Lin stated that the claimant could not satisfactorily perform any job requiring repetitive bending or lifting and therefore “should be totally disabled so far as that type of job is concerned.” It is undisputed that the claimant’s bartending duties involved repeated bending, lifting and stooping. That fact, coupled with Dr. Lin’s testimony, led the referee to conclude that the claimant was totally disabled. It is solely within the province of the referee to determine the weight and credibility of the evidence presented, and he is free to accept or reject the testimony of any [181]*181witness in whole or in part. United States Steel Corp. v. Workmen’s Compensation Appeal Board, 46 Pa. Commonwealth Ct. 352, 407 A.2d 464 (1979). In addition, it is well settled law that a decision by the compensation authorities, if supported by competent evidence, is binding on this Court. Mapp v. City of Philadelphia, 13 Pa. Commonwealth Ct. 23, 317 A.2d 680 (1974). Since the referee’s findings of fact and conclusions of law with respect to claimant’s total disability are supported by substantial evidence on the record, we are without power to disturb them.

Once the claimant has shown by credible evidence that he can no longer perform his former work because of a work-related injury, the burden shifts to the employer to show that the claimant can perform certain work and that such work is available. Steinle v. Workmen’s Compensation Appeal Board, 38 Pa. Commonwealth Ct. 241, 393 A.2d 503 (1978). Specifically, the employer must prove the availability of work which is suited for the claimant, within his age, educational, and physical limitations. Parkview Hospital, Inc. v. Workmen’s Compensation Appeal Board, 20 Pa. Commonwealth Ct. 567, 342 A.2d 137 (1975). In this case, claimant’s employer sought to discharge its burden of proof through the introduction of testimony of Dr. Morris M. Eubin, a counselling psychologist specializing in vocational rehabilitation, job counselling, and guidance placement. Dr. Eubin, after administering a series of tests to determine claimant’s intellectual abilities, job preferences, and personality, concluded that the claimant was capable of performing a variety of jobs.

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Bluebook (online)
438 A.2d 657, 63 Pa. Commw. 176, 1981 Pa. Commw. LEXIS 1953, Counsel Stack Legal Research, https://law.counselstack.com/opinion/4156-bar-corp-v-commonwealth-pacommwct-1981.