Topflight Corp. v. Workmen's Compensation Appeal Board

499 A.2d 415, 92 Pa. Commw. 451, 1985 Pa. Commw. LEXIS 1333
CourtCommonwealth Court of Pennsylvania
DecidedOctober 29, 1985
DocketAppeal, No. 2758 C.D. 1984
StatusPublished
Cited by1 cases

This text of 499 A.2d 415 (Topflight 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
Topflight Corp. v. Workmen's Compensation Appeal Board, 499 A.2d 415, 92 Pa. Commw. 451, 1985 Pa. Commw. LEXIS 1333 (Pa. Ct. App. 1985).

Opinion

Opinion by

Judge Rogers,

Topflight Corporation (employer) has filed a petition for review of an order of the Workmen’s Compen[452]*452sation Appeal Board (¡board) upholding a referee’s conclusion that the condition of Helen L. Sho-walter (claimant) had Changed from ¡partial to total disability and granting the prayer of her petition for modification of compensation benefits.

The claimant injured her black on May 17, 1976, while in the course of her employment; Pursuant to a notice of compensation payable, the claimant received benefits for total disability. She returned to work on January 21, 1977 and ¡signed a final receipt. The claimant’s disability recurred on March 7, 1977, and the parties entered into a supplemental compensation agreement ¡which provided for the claimant’s receipt of benefits for total disability. On ¡September 5, 1978, the parties entered into a second ¡supplemental agreement showing that the claimant’s disability had changed from total to partial and providing for partial disability benefits.

. - .The-claimant stopped-working in January, 1979 and in December, 1979, she filed a petition for modification, alleging that her disability had changed from partial to total ¡disability. A referee’s hearing on the modification petition was held on March 12,1980. In a decision filed May 1, 1980, the referee concluded that the claimant failed to meet her burden of proving that her disability had changed from partial to total. No appeal was taken from the decision.

•On March 23, 1981, the claimant filed a second modification petition in which she averred that “her condition has significantly deteriorated” since April 25, 1980 .and that her ¡disability had increased from partial to total. In support of her petition, the claimant testified on her own behalf and presented the deposition of her treating physician, Dr. J. Joseph Danyo, and the deposition of a psychiatrist, Dr. Howard N. Frederiekson, who treated her from February to May of 1981. On cross-examination,. Dr. Frederiekson, as [453]*453will ¡be seen, more or less volunteered his opinion that the claimant’s condition had been stable for an extended time before he first treated her.

In a decision f avoring the employer dated July 21, 1982, the referee made the following pertinent findings of fact:

4. That Dr. Howard N. Frederickson testified . . . that her physical and emotional condition did not improve during the period of his treatment and further opined that this condition had .been ‘.stable’ for a period of two-to-tbree years prior to his treatment and your Referee accepts this testimony as credible....
5. That Dr. J. Joseph Danyo, the treating physician . . . , .states that the claimant’s phyisieal condition, of which he can find no objective findings, has also remained constant since April, 1980 and your Referee finds this testimony credible.
6. That there is no testimony which your Referee accepts that .shows any recurrence of disability since the prior Referee’s order.

The referee denied the petition for modification. The claimant appealed and the board vacated the referee’s decision and order and remanded the matter to the referee for findings.

The board held that that part of Dr. Frederick-'s on’s testimony which formed the basis of the referee’s fourth finding of fact, that the claimant’s condition had been stable for two to three years before he saw her, was incompetent ¡as equivocal and because, having treated the claimant only from February to May of 1981, Dr. Frederickson’s opinion that the Claimant’s condition was stable for two or three years before he first saw her was, in effect, without foundation.

[454]*454The hoard also observed that the referee in his fifth finding referred to Dr. Danyo’s testimony concerning the claimant’s ¡physical'condition but disregarded that portion of his testimony in which he unequivocally expressed his opinion that the claimant’s mental and emotional condition had deteriorated since April, 1980. The board also concluded that the referee ’is sixth finding of fact referring to the absence of 'evidence of recurrence was in disregard of the true issue because the claimant had not claimed that her disability had recurred but that her work-related disability had increased.

Finally, the board held that the referee correctly 'applied the rule of Cerny v. Schrader & Seyfried, Inc., 463 Pa. 20, 342 A.2d 384 (1975), that a claimant receiving partial disability benefits who files a petition seeking compensation for total disability has the burden to prove that his disability increased after the date of the referee’s award for partial disability, and 'that the referee failed to consider .the exception to this rule applicable where a claimant .proves a change of 'condition occurring after the date of the referee’s hearing .and at a time too close to the time of the filing of the referee’s decision for him to notify compensation authorities of the change. Brockway Glass Co. v. Workmen’s Compensation Appeal Board, 31 Pa. Commonwealth Ct. 624, 377 A.2d 1029 (1977). Here .the referee’s hearing in the first case was held on March 12, 1980, .and the decision denying the prayer of the claimant’s petition for modification for total disability was filed on May 1, 1980. In this, the second proceeding, the claimant alleges that ¡she became totally disabled on April .25, 1980 and Dr. Danyo testified .that the claimant’s mental condition had deteriorated after April 17,1980. The board in this proceeding held that the Brockway exception might apply but that without [455]*455express findings of fact on these erncial issues, it was unable to review the referee’s decision.

In short, the board remanded the matter because one of the referee’s findings was biased on incompetent evidence, another was made in disregard of competent evidence, and because the referee had failed to make the findings necessary to the decision of an issue raised by the evidence.

On remand, a different referee accepted Dr. Fredericks on’s testimony that the claimant’s work-related injury was the cause of her mental condition but rejected Dr. Frederiekson’s “suppositions as to Claimant’s condition for the period of years prior to his treatment of her.” The referee also found, based on Dr. Danyo’s testimony, that the claimant’s mental and emotional state had deteriorated to the point of total disability during April, 1980, and awarded compensation for total disability. The board affirmed.

The employer raises two questions: (1) that of whether the board acted properly in vacating the first referee’s decision and order and in remanding the cause for findings and (2) that of whether the findings of fact of the referee who decided the case on remand in favor of the claimant were supported by substantial evidence.

With respect to the first question, the employer contends that Dr. Frederiekson’s cross-examination testimony was not incompetent as equivocal. We disagree and reproduce the witness’ testimony which in our view is clearly equivocal:

Q. And you, also, expressed the opinion that as of your last visit that her condition had stabilized?
A.

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Bluebook (online)
499 A.2d 415, 92 Pa. Commw. 451, 1985 Pa. Commw. LEXIS 1333, Counsel Stack Legal Research, https://law.counselstack.com/opinion/topflight-corp-v-workmens-compensation-appeal-board-pacommwct-1985.