George v. Commonwealth

437 A.2d 521, 63 Pa. Commw. 23, 1981 Pa. Commw. LEXIS 1917
CourtCommonwealth Court of Pennsylvania
DecidedDecember 1, 1981
DocketAppeal, No. 2993 C.D. 1980
StatusPublished
Cited by11 cases

This text of 437 A.2d 521 (George 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
George v. Commonwealth, 437 A.2d 521, 63 Pa. Commw. 23, 1981 Pa. Commw. LEXIS 1917 (Pa. Ct. App. 1981).

Opinion

Opinion by

Judge MacPhail,

William F. George (Claimant) appeals from a decision of the Workmen’s Compensation Appeal Board (Board) upholding a referee’s grant of Portage Borough Council’s (Employer) Termination Petition. In view of the fact that several errors of law were made by the referee, and were affirmed by the Board, we will reverse and remand.

Claimant worked as a police officer for the Em: ployer. On September 5, 1976, while in the course of his employment, Claimant was injured when struck by a series of blows from an assailant’s fist to the nose and left side of the Claimant’s face and left eye. On September 30,1976, a Notice of Compensation Payable was executed, describing Claimant’s injuries as “com-minuted fracture of the nose, abrasions of face and left eye.” Employer filed a Petition for Termination on September 8, 1977, alleging that the Claimant’s injuries had healed within one month. Claimant denied this allegation, claiming that his eye injury was now permanent in nature.

Claimant has been a diabetic for roughly 25 years and at the time of his injury suffered from diabetic retinopathy, a serious deteriorative condition of the eyes and a manifestation of a diabetic condition. According to the findings of the referee, Claimant’s left •eye was in an advanced proliferative stage of this condition, which would eventually result in tractional de[25]*25tacbment of the retina. On August 12, 1976, Claimant had only eccentric vision in his left eye, which was described by Employer’s medical witness1 as a loss of central vision, requiring Claimant to look to the side of an object in order to perceive it. The referee also found Claimant’s visual acuity on August 12 to be 20/400 in his left eye. Claimant was also seen by his ophthalmologist, Dr. Everett, on September 1, four days prior to the injurious event, and no retinal detachment was found at that time. On September 22, 1976, tractional retinal detachment was found to have occurred in the left eye.2

The referee gave two separate reasons for granting the Termination Petition. The first of these reasons has its source in referee’s Finding of Fact No. 21: “The cause of the loss of vision of the left eye is tractional retinal detachment and not the result of trauma to the eye of September 5th, 1976.” Of course, there must be a causal relationship between the present disability and the September 5 injury, but an examination of the record discloses this determination of who had the burden of proof by the referee :

Alright, now, proeedurally, this is how I view the matter, if . . . there is evidence, competent evidence, to establish that the fracture of the [26]*26nose, abrasions of the face and of the left eye have healed then [you, the Employer] . . . have met your present burden for termination. Now if the Claimant’s theory is that... there are additional injuries not properly described as the result of that injury, then you [the claimant] have to show this by competent evidence that these injuries resulted from the blow of 9-5-76.

It appears that the referee considered Claimant’s loss of vision in the left eye to be a different injury from that set forth in the compensation payable agreement. In Workmen’s Compensation Appeal Board v. Precisionware, Inc., 21 Pa. Commonwealth Ct. 573, 317 A.2d 322 (1975), the Employer also argued that the referee should not have considered evidence of back injuries on a modification petition when the compensation agreement described the injury as “nerve injury to left arm.” This Court therein stated: “We do not view the meager description in the compensation agreement as strictly controlling the course of future litigation. ’ ’ In the instant case, Claimant testified that he was struck in the left eye and, as we have noted, the agreement describes the nature of the injury as “com-minuted fracture of the nose, abrasions of face and left eye.” (Emphasis added). We believe the decision in Preeisiomoare is controlling authority in determining that the injury described in the compensation payable agreement is adequate to cover Claimant’s present disability.

Accordingly, the placing of the burden of proving that Claimant’s present disability resulted from the injury he sustained on September 5, 1976, is quite clearly erroneous. “[I]f a claimant is currently disabled, the [Employer] must show a lack of causal connection between the disability and the compensable injury. We have never held that in termination proceedings the burden shifts at anytime to the claimant to [27]*27prove the existence of a cansal connection between his disability and his injury.” Unity Builders, Inc. v. Workmen’s Compensation Appeal Board, 50 Pa. Commonwealth Ct. 527, 532, 413 A.2d 40, 43 (1980) (citation omitted). See Children’s Aid S Family Services v. Workmen’s Compensation Appeal Board, 53 Pa. Commonwealth Ct. 379, 417 A.2d 1297 (1980); Workmen’s Compensation Appeal Board v. F. W. Woolworth Co., 19 Pa. Commonwealth Ct. 413, 338 A.2d 784 (1975). Interestingly, the Board correctly places the burden of proof upon the Employer but concludes that the testimony of Doctors Ashman and Everett satisfies that burden. That conclusion is for the fact finder, not the Board.

In view of this error, the finding of non-causation is suspect and should be redetermined.

The second reason asserted for granting termination can be found in referee’s Finding of Fact No. 23 and referee’s Conclusion of Law No. 4. Finding No. 23 states: “On September 1st, 1976, the claimant’s vision in his left eye was lost to him for all practical intents and purposes. ’ ’3 Conclusion of Law No. 4 held: “Where an employee suffers from a disease unrelated to his employment and where the natural progression of said disease will result in the loss of vision for all intents and purposes and where there exists no reasonable expectation that treatment will arrest said progression and said condition exists prior to the occurrence of any work related injury the claimant has already lost for all practical intents and purposes his eye and, therefore, cannot have lost it within the meaning of the Workmen’s Compensation Act.”

We are not totally certain whether the referee meant by these two statements that the vision was lost [28]*28prior to September 5, or that the vision was certain to be lost in the near future from a detachment and that therefore vision was in effect lost prior to the September 5 incident. The latter reasoning is quite clearly contrary to law, for Section 7 of The Pennsylvania Workmen’s Compensation Act, Act of March 29,1972, P.L. 159, as amended, 77 P.S. §411 states that “injury . . . shall be construed to mean an injury to an employee, regardless of Ms previous physical condition, . . . and such disease or infection as ... is aggravated, reactivated or accelerated by the injury. ’ ’ (Emphasis added).

As for the interpretation that the referee intended by his Finding No.

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Bluebook (online)
437 A.2d 521, 63 Pa. Commw. 23, 1981 Pa. Commw. LEXIS 1917, Counsel Stack Legal Research, https://law.counselstack.com/opinion/george-v-commonwealth-pacommwct-1981.