Smith v. Commonwealth, Workmen's Compensation Appeal Board

CASTILLE, Justice,

concurring.

I agree with the majority’s conclusion that appellants waived the statute of limitations defense. I also agree with the majority’s reversal of the Commonwealth Court’s award of attorney’s fees to appellee. However, because I believe that the Commonwealth Court erred in reversing the Workmen’s Compensation Board’s holding that appellee failed to present substantial evidence to meet his burden of proof in a reinstatement ease, I would reverse the award of attorney’s fees for reasons different than that of the majority.

The claimant bears the burden of proof in seeking reinstatement of total disability workmen’s compensation benefits. Pieper v. Ametek-Thermox Instruments Div., 526 Pa. 25, 31 , 584 A.2d 301, 304 (1990). In order to sustain his burden of proof, claimant must show that his disability has increased or recurred since the date of the prior agreement and that his physical condition has actually changed. Id. In Pennsylvania, disability under the Workmen’s Compensation Act has always been synonymous with the loss of earning power. Kachinski v. Workmen’s Compensation Appeal Board (Vepco Construction Co.), 516 Pa. 240 , 532 A.2d 374, 378 (1987).

In this case, appellee supported his reinstatement petition with the testimony of his treating physician. Even though a workmen’s compensation referee in 1981 ordered appellants to pay partial disability benefits from September 1, 1980 onward, benefits which were ultimately commuted to a $25,000 lump sum payment, appellee’s treating physician testified that he considered appellee totally disabled since September, 1980. The treating physician also opined that appellee’s back condition has gradually worsened since September, 1983. The treating physician admitted that x-rays taken in 1974 just after appellee injured his back and in 1983 showed the same findings except for degenerative changes which normally happen as a person gets older. Moreover, the treating physician opined that for disability purposes, he would place the same physical restrictions on appel-lee today that he would have ten (10) to fifteen (15) years ago.

The referee was also presented with the testimony of a physician who examined ap-pellee at appellants’ request. The physician opined that appellee’s condition was essentially unchanged from when he examined ap-pellee in 1985 until when he next examined him in 1987. The physician also opined that appellee was only partially disabled since he was capable of performing some sedentary and light duty jobs.

In ordering that appellee’s total disability benefits be reinstated as of December 12, 1990, the referee rejected the portion of ap-pellee’s treating physician’s testimony that appellee was totally disabled since 1980. See Hartner v. Workmen’s Compensation Appeal Board (Phillips Mine & Mill, Inc.), 146 Pa.Commw. 167, 174, 604 A.2d 1204, 1207 , appeal denied, 531 Pa. 662 , 613 A.2d 1210 (1992) (in workmen’s compensation proceedings, referee may accept testimony of any witness in whole or in part). If the portion of the treating physician’s opinion concerning total disability is deleted, the treating physician’s testimony shows that appellee’s physical condition and disability has not significantly changed since partial disability benefits were awarded in 1981. Moreover, the second physician’s testimony that appel-lee is still capable of doing some sedentary and light duty jobs hardly suggests that ap-pellee’s disability has worsened to the point that appellee is now totally disabled.

Based on this evidence, one must conclude that the Board correctly reversed the referee since appellee faded to present substantial evidence that his disability had increased and that his physical condition has worsened. See Hartner, supra (claimant not entitled to reinstatement of total disability benefits where physician opined that when he last saw claimant he could still perform sedentary work and that physician did not believe claimant’s condition had changed since physician completed retum-to-work form before commutation petition of partial disability benefits was granted). Thus, I believe the Commonwealth Court erroneously substituted its own judgment for that of the Board *1151 when it reversed the Board and held that appellee was entitled to reinstatement of total disability benefits as of December 12, 1990. If appellee failed to meet his burden of proof, it follows that attorney’s fees and costs should not have been awarded since appellants had a reasonable basis to contest the award of benefits.

Accordingly, while I believe the majority correctly reversed the Commonwealth Court’s award of attorney’s fees and costs, I would do so because I believe that the Board correctly determined that appellee was not entitled to the reinstatement of total disability benefits.