Opinion
Argued June 9, 1977
September 19, 1977.
Workmen's compensation — Petition to terminate agreement — Burden of proof — Scope of appellate review — Consistent findings — Capricious disregard of competent evidence — Medical reports — Harmless error — Conflicting evidence.
1. An employer seeking termination of a workmen's compensation agreement has the burden of proving that the disability of the claimant has ceased. [645]
2. In a workmen's compensation case where the party with the burden of proof did not prevail below, review by the Commonwealth Court of Pennsylvania is to determine whether findings of fact are consistent with each other and with the conclusions of law and can be sustained without a capricious disregard of competent evidence. [645]
3. A workmen's compensation award will not be reversed because medical reports were improperly received in evidence without providing the adverse party an opportunity to object when the findings can be sustained on the basis of other competent evidence and without a capricious disregard of evidence to the contrary. [645]
4. Workmen's compensation authorities do not capriciously disregard evidence merely because they have rejected competent medical testimony and accepted conflicting evidence which is equally competent. [646]
Argued June 9, 1977, before Judges CRUMLISH, JR., KRAMER and BLATT, sitting as a panel of three. Judge KRAMER did not participate in the decision.
Appeal, No. 1146 C.D. 1976, from the Order of the Workmen's Compensation Appeal Board in case of Jane Frombach v. Bali Bra Manufacturing Company, No. A-70524.
Petition with Department of Labor and Industry to terminate workmen's compensation agreement. Petition dismissed. Petitioners appealed to the Workmen's Compensation Appeal Board. Appeal dismissed. Petitioners appealed to the Commonwealth Court of Pennsylvania. Held: Affirmed.
James S. Routch, with him Philip W. Savitz, and Patterson, Evey, Routch, Black Behrens, for appellants.
No appearance or brief for appellees.
The Bali Bra Manufacturing Company (Bali) and its insurance carrier have appealed from an order of the Workmen's Compensation Appeal Board (Board) which affirmed a referee's dismissal of Bali's petition to terminate workmen's compensation benefits. The awardee had sustained a back injury on August 3, 1973 while employed by Bali and had entered into a compensation agreement with her employer for total disability benefits. On October 23, 1974, however, Bali filed a Petition for Termination alleging that the awardee's disability ceased as of June 17, 1974. After a hearing, the referee found that Bali had not presented sufficient evidence to indicate that the awardee's disability had ceased and denied the termination petition. The Board, reasoning that the referee had resolved the conflicting medical evidence in her favor, affirmed the referee's order. Bali has appealed to this Court contending that the admission into evidence of certain medical reports constituted an error of law and that the compensation authorities capriciously disregarded competent evidence in denying its termination petition.
The employer has the burden of proving that an employe's disability has ceased, and, where the employer has not prevailed below, our scope of review is limited to a determination of whether or not the findings of fact are consistent with each other and with the conclusions of law and whether or not these findings can be sustained without a capricious disregard of competent evidence. Workmen's Compensation Appeal Board v. Kelly Steel Erectors, Inc., 25 Pa. Commw. 329, 361 A.2d 478 (1976).
Our review of the record here confirms that certain medical reports were sent to the referee by counsel for the awardee and that the referee admitted these reports into evidence, apparently without providing Bali's counsel with an opportunity to object to their admission. Although these reports cannot be considered competent evidence on which the referee could base his findings of fact, in view of our limited scope of review, we must nevertheless affirm the referee, if his findings can be sustained on the basis of other competent evidence and without a capricious disregard of Bali's evidence to the contrary.
Here, in addition to the medical reports to which Bali now objects, the record also contains the testimony of two physicians. Bali's medical expert testified that the awardee had no residual disability at the time of his examination of her and that, in his opinion, she could at that time have returned to work. Her orthopedic surgeon testified that she continues to experience pain which is aggravated by activity and that this pain would render her incapable of the lifting required to perform her previous job. The referee obviously chose to believe the orthopedic surgeon in finding that "[t]he claimant is unable to return to her former position with her present employer because she is unable to perform any job that requires lifting of over ten pounds, and still suffers pain as a result of the strained back injury." We cannot say the workmen's compensation authorities have capriciously disregarded competent evidence merely because they have rejected some competent evidence which conflicts with other, equally competent, evidence. Brewer v. Workmen's Compensation Appeal Board, 16 Pa. Commw. 187, 329 A.2d 323 (1974).
Bali's counsel did not object to the physician's testimony that the awardee experiences pain. Testimony based on a doctor's personal observation that a patient suffers pain is competent evidence which may be weighed by the fact-finder. Laurelli v. Shapiro, 416 Pa. 308, 206 A.2d 308 (1965).
We have carefully reviewed the record in this case, and we are unable to conclude that either the referee or the Board capriciously disregarded competent evidence in finding that the awardee's disability had not terminated. The decision of the Board is, therefore, affirmed.
Judge KRAMER did not participate in the decision in this case. See Pa. R.A.P. 3102(d).
ORDER
AND NOW, this 19th day of September, 1977, the order of the Workmen's Compensation Appeal Board, dismissing the petition to terminate benefits to Jane Frombach, is hereby affirmed.