Navarro Corp. v. Workmen's Compensation Appeal Board

686 A.2d 853, 1996 Pa. Commw. LEXIS 466
CourtCommonwealth Court of Pennsylvania
DecidedNovember 13, 1996
StatusPublished

This text of 686 A.2d 853 (Navarro Corp. v. Workmen's Compensation Appeal Board) 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
Navarro Corp. v. Workmen's Compensation Appeal Board, 686 A.2d 853, 1996 Pa. Commw. LEXIS 466 (Pa. Ct. App. 1996).

Opinion

COLINS, President Judge.

Navarro Corporation (Navarro) and Northbrook National Insurance Company (Northbrook Insurance) petition for review of the March 22,1995 decision and order of the Workmen’s Compensation Appeal Board (Board), affirming the April 6, 1992 decision of the referee that granted the claim petition filed by Lovett Williams (Williams).

Williams worked as a cement finisher for approximately 20 years, working out of his union hall for various contracting tas, one of which was Navarro. As a cement finisher, Williams was required to spend considerable time kneeling while smoothing newly poured concrete. On May 22, 1986, Williams filed a claim petition alleging that on May 11, 1984 (the first day of a new work assignment with Navarro), he became disabled because of “repetitive, continuous trauma” connected with his work responsibilities which, as averred in Williams’s claim petition, aggravated pre-ex-isting degenerative joint disease in both his knees. Williams’s claim petition was initially denied by the referee on March 8, 1988 after a series of hearings at which Williams presented unrebutted medical evidence. The Board, on June 8, 1989, reversed the referee’s decision and remanded the matter “for the referee to fulfill his fact finding function” and to determine whether Williams injured himself while employed by Navarro.

On remand, the referee, on March 9, 1990, rendered a decision containing findings of fact and an order that again dismissed Williams’s claim petition. By order dated June 28,1991, the Board again remanded the matter, this time “for clarification” because of the referee’s failure to: (1) reject Williams’s testimony or set forth reasons for doing so; (2) make credibility determinations as to other witnesses’ testimony; and (3) make adequate findings of fact rather than merely summarize testimony. In response to this last remand order, the referee, on April 6, 1992, determined that Williams had successfully established a work-related injury solely with respect to his left, but not his right knee, and ordered Navarro to pay Williams compensation at the weekly rate of $320.00 from May 13, 1984 to date and continuing. On March 22, 1995,'the Board affirmed the referee’s April 6, 1992 decision in Williams’s favor.

Navarro filed a petition for review with this Court. By a panel decision and opinion dated February 21, 1996,1 we affirmed the Board’s order. Subsequently, Navarro petitioned for reargument before this Court en banc on the grounds that the aforementioned opinion did not address Navarro’s arguments regarding the propriety of the Board’s remand orders and the referee’s treatment of the burden of proof issue. By an order dated April 15, 1996, we granted Navarro’s application for reargument and withdrew our prior opinion and order.

[855]*855Navarro contends that the Board erred in reversing and remanding the referee’s first two decisions in which, according to Navarro, Williams was not found to be a credible witness, and that the Board subsequently erred in affirming the referee’s April 6, 1992 decision that accepted Williams’s testimony simply because it was unrebutted by Navarro. Averring that the referee’s April 6, 1992 decision erroneously shifted the burden of proof from claimant to eznployer, Navarro further maintains that it presented evidence of Williams’s failure to prove his alleged May 1984 work injury, failure to inform his job supervisors of any such injury, and failure to inform his treating physicians of any work incident resulting in injury.

After reexamining the record, we disagree. In Hall v. Workmen’s Compensation Appeal Board (Mt. Braddock Land Co.), 142 Pa.Cmwlth. 341, 597 A.2d 265 (1991), this Court noted those occasions warranting the remand of matters to a referee, as follows:

If ... it appears that the burdened party has presented sufficient competent evidence that, if believed, would overcome his burden of proof, and it is not clear from the adjudication that a credibility determination has been made, we will remand the matter to the agency for the proper findings and conclusions of law following those findings. We will not infer a credibility determination merely from the decision of the factfinder against the party with the burden of proof... Because it is unclear whether the referee based his decision on a legal determination of insufficient evidence or a factual determination of credibility, we must remand for appropriate findings of fact.

Id. 597 A.2d at 266-67 (emphasis in original). Similarly, the Court in ARMCO, Inc. v. Workmen’s Compensation Appeal Board (Carrodus), 139 Pa.Cmwlth. 326, 590 A.2d 827 (1991), petition for allowance of appeal denied, 529 Pa. 636, 600 A.2d 955 (1991), stated in its remand decision that

[t]he referee has not made any findings with respect to any of the witnesses. Had the referee simply stated that claimant’s doctor was not believable, we would have no choice but to affirm. Given the referee’s statement that the claimant did not produce credible unequivocal testimony, when the testimony was clearly unequivocal, we are prevented by Mayo v. Workmen’s Compensation Appeal Board [117 Pa.Cmwlth. 336, 543 A.2d 617 (1988)] ... from inferring the necessary credibility finding. While we recognize that the employer has no burden in a case such as this, we are unable, given all the circumstances to affirm on the basis of the referee’s right to decide credibility questions .... A remand is warranted where the referee has failed to make findings on a crucial issue necessary for the proper application of the law.

Id. 590 A.2d at 828-29 (emphasis in original). The rationale of Hall and ARMCO is applicable to the present matter, wherein the Board first remanded the case in June 1989, because the referee’s March 1988 decision did not contain any findings of fact that would support the referee’s conclusion (erroneously labelled Finding of Fact No. 10) that “claimant’s knee problems are not due to the episode claimed on May 11,1984.” As a further reason for remand, the Board found that the referee erroneously characterized Dr. Eric Minde’s deposition testimony as equivocal when, to the contrary, said testimony clearly acknowledged that Williams sustained a “derangement of the left knee” and that there was “a direct relationship” between Williams’s May 11, 1984 work incident and his knee disability. The Board’s second remand of June 28, 1991, resulted from the Board’s determination that the referee’s March 1990 decision again failed to provide findings of fact, but rather only “summaries of testimony” that provided no adequate basis for appellate review. In light of Hall and ARMCO, therefore, we find the Board’s second remand to the referee appropriate, and we reject Navarro’s objections in this regard.

With respect to Navarro’s allegation of improper burden shifting, we find this too without merit. This Court has consistently reaffirmed that “[t]he burden of proof that must be carried in workers’ compensation cases depends upon the petition or petitions presented for adjudication. In an original claim petition, such as the present case, the [856]

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