# Acme Markets, Inc. v. WORKMEN'S COMPENSATION APPEAL BOARD (ANNETTE PILVALIS)

> Commonwealth Court of Pennsylvania · September 16, 1991 · 142 Pa. Commw. 400

URL: https://www.frixlaw.com/law-library/cases/9647984

## Case

- **Full name:** ACME MARKETS, INC., Petitioner, v. WORKMEN’S COMPENSATION APPEAL BOARD (ANNETTE PILVALIS), Respondent
- **Court:** Commonwealth Court of Pennsylvania
- **Decided:** September 16, 1991
- **Citations:** 142 Pa. Commw. 400; 597 A.2d 294; 1991 Pa. Commw. LEXIS 514
- **Precedential status:** Published
- **Opinion:** Dissent by Barry
- **Judges:** Doyle, Byer, Barry
- **Cited by:** 24 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

BARRY, Senior Judge,
dissenting.
I must respectfully disagree with the majority opinion’s analysis of the referee’s actions in this case. The referee did no more than decide as a question of fact that the *410 claimant was not capable of performing the jobs to which she was referred by the employer. Such a credibility determination is clearly within the province of the referee and beyond our review. I would affirm the order of the Board and thus must dissent.
As I believe the referee’s determinations concerning credibility are crucial to the outcome of this case, I find it necessary to quote the entire decision of the referee.
FINDINGS OF FACT
1. Neither party rejected the provisions of the Workers’ Compensation Act of 1972, as amended.
2. This case was previously before the Referee and the Referee entered an Order on February 9, 1989 denying Defendant’s Petition. Thereafter, an Appeal was filed with Workers’ Compensation. Appeal Board, and in a Decision dated, December 1, 1989, the Referee was reversed and the case remanded. In reviewing the directive of the Board, we note that they rely on Russell v. the Workers’ [Workmen’s] Compensation Appeal Board [ 121 Pa.Cmwlth. 436 ], 550 A.2d 1364 as the basis of remand and indicated that the Referee did not state that he did not believe the testimony of the Doctors or the vocational witnesses, and as a result, the testimony was uncontradicted.
3. That on April 7, 1986, the Defendant filed a Petition for Termination/Modification in the above captioned matter, alleging that the Claimant was recovered sufficiently to return to her pre-injury job or in any event, to return to a light duty job, and to which Petition, Claimant filed an Answer denying that she was able to return to work. Several hearings were held.
4. Factually, Claimant was injured on January 15, 1981, when she fractured her left ankle and she has received compensation at a rate of $239.33 based on an average weekly wage of $359.00 per week and continues to receive compensation until the present time.
*411 5. The Defendant presented the testimony of Dr. Joseph Sgarlat, who examined the Claimant on March 24, 1986. He noted that the Claimant was initially treated by Dr. Volpeti and developed some phlebitis in her leg after the injury in 1981 and Claimant says that she had no history of any recurrent phlebitis. At the time of his evaluation, he felt the ankle had healed, but Claimant could not return to the job of a checker, her previous work. Dr. Sgarlat felt that she could perform a job which would involve sitting or standing on an alternative basis, not necessarily 50/50, but the job should permit her to get off of her feet occasionally after an hour or so. He felt that she could stand or walk four to six hours a day, that she could sit five to eight hours a day and that she could drive an automobile. Dr. Sgarlat approved various positions for the Claimant which had been previously located for her. Dr. Sgarlat testified that each of the jobs would be within her physical restrictions.
6. The Defendant further presented the testimony of Robert Ozovek of Vocational Rehabilitation Services, regarding six positions that he had referred to the Claimant. Mr. Ozovek testified as an expert witness, that all of the jobs were within the vocational capabilities of this Claimant. The Referee, however, finds that factually these jobs did not meet all of Dr. Sgarlat’s requirements or of Dr. Richard Blum, who was treating the patient, but had initially examined her on behalf of the Defendant. Dr. Blum felt that the Claimant was able to return to work, but was not able to return to her previous employment. The Doctor did not feel that there were any limitations based upon her previous phlebitic condition, but did feel that she had limitations because of pain in her ankle. He felt that she could perform any job which involved mostly sitting or which involved relatively brief periods of standing after which she could sit down. The Doctor reviewed each of the positions which were presented and approved them. Again, as with Dr. Sgarlat, the jobs did not fit their own limitations.
*412 7. Claimant’s phlebitis developed as a complication of the original injury and is susceptible to recurring bouts of phlebitis.
8. It is clear Claimant cannot return to her original employment as a checker because prolonged periods of standing is contraindicated due to the pain experienced by her, as prolonged periods of sitting will predispose Claimant to phlebitis.
9. Of the positions described by Defendant’s Vocational Expert, none provided the option of alternating positions between sitting and standing, and he did not observe a work day at any of the proposed job sites. All information was prepared by the employers as it relates to job requirements.
10. The Referee finds that the jobs, as offered, do not provide nor do they comply with the restrictions and limitations imposed by either Dr. Sgarlat and/or Dr. Blum. All of the jobs, in some manner, meet either the requirements and/or limitations of Dr. Blum or Dr. Sgarlat but not in their totality and, thus, we reject the jobs as not being consistent with the limitations as imposed by both physicians.
CONCLUSIONS OF LAW
1. Both parties are bound by the provisions of the Workers’ Compensation Act of 1972, as amended.
2. Defendant has the burden of proving that Claimant’s disability has ceased or has been reduced or that the ability to perform available work, while Claimant has no burden to prove her continuing disability.
3. The Defendant has failed to establish available jobs within the limitations as imposed by their own Doctors.
(Referee’s decision, 4/9/90).
We must first note that the referee could have made our task much simpler had he made specific findings with regard to the credibility of the witnesses. A review of the entire decision of the referee quoted above reveals not one *413 instance in which he specifically accepts or rejects any of the testimony before him.
As the majority correctly points out, we are dealing here with a situation where the employer, the party saddled with the burden of proof on a modification/termination petition, was the only party to present evidence. In that regard, our following statement in Kirkwood v. Unemployment Compensation Board of Review, 106 Pa.Commonwealth Ct. 92, 525 A.2d 841 (1987), is relevant:
Where ... the party with the burden of proof is the only party to present evidence, and that party does not prevail before the [fact finder], we must first examine the record to determine whether that party as a matter of law, has met his burden. If he has not, we will affirm the agency decision. If, on the other hand, 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 [fact finder] for the proper findings and conclusions of law following those findings. We will not infer a credibility determination merely from the decision of the fact finder against the party with the burden of proof
Id., 106 Pa.Commonwealth Ct. at 97-98, 525 A.2d at 845 (emphasis in original).
I do agree with the majority that there is competent evidence in this record which if believed would be sufficient to allow the employer to meet its burden in this case. The employer presented testimony of two doctors, both who opined that the claimant could return to work with certain restrictions. The employer also presented evidence that the claimant was referred to jobs allegedly within those restrictions and that she failed to follow through on any of the referrals. Under Kachinski v. Workmen’s Compensation Appeal Board (Vepco Construction Co.), 516 Pa. 240 , 532 A.2d 374 (1987), this evidence if credited would have sufficed to require the grant of the employer’s modification *414 petition. At this point, however, my agreement with the majority opinion ends.
The majority states that the referee and the Board erred in imposing a higher level of proof on the employer than Kachinski requires. This referee in no way required the employer to “match every individual medical restriction to every one of the job duties in a preferred position____” (Maj. opinion, pp. 405-407. If that is what had been done, I would agree with the majority that imposing such a duty was an error of law. I believe, however, that the referee in the present case simply did not believe that this claimant was capable of doing the jobs in question.
Such a determination is certainly beyond our review. In a portion of Kachinski quoted in the majority opinion, the Supreme Court stated that “it will be up to the referee to determine whether the claimant can perform the job in question.” Id., 516 Pa. at 251 , 532 A.2d at 379 . Even in the portion of Judge Doyle’s Dissenting Opinion in Farkaly v. Workmen’s Compensation Appeal Board (Baltimore Life Insurance Co), 91 Pa.Commonwealth Ct. 571, 498 A.2d 34 (1985), which was quoted with approval by the Supreme Court in reversing this Court, 516 Pa. 256 , 532 A.2d 382 (1987), Judge Doyle stated, “It is within the referee’s province as fact finder to assess these duties and restrictions and determine if Claimant could perform the jobs.” 91 Pa.Commonwealth Ct. at 576, 498 A.2d at 34 (emphasis in original).
Under the guise of the standard of “capricious disregard”, the majority adopts the role of a fact finder in this case by giving credit to the testimony of both doctors that the claimant was capable of performing the light duty jobs. In Arena v. Packaging Systems Corp., 510 Pa. 34 , 507 A.2d 18 (1986), cited by the majority, the Supreme Court reversed this Court’s application of the capricious disregard standard, concluding that application of that standard encroached upon the referee’s decision concerning the credibility of certain medical testimony. Arena is the only case I have been able to find where an appellate court (the Com *415 monwealth Court) applied the capricious disregard standard to reverse a credibility determination of a fact finder. The Supreme Court’s reversal of our decision shows that was error.
I must also comment on what I believe to be an incorrect reading of the Supreme Court’s decision in Farquhar v. Workmen’s Compensation Appeal Board (Corning Glass Works), 515 Pa. 315 , 528 A.2d 580 (1987). The majority reads that case for the proposition that a “referee may not ‘reject’ credible and uncontradicted medical evidence without explaining why the evidence was rejected.” (Maj. opinion at p. 405). Farquhar simply does not stand for that proposition. In that case, the referee made a finding of fact that the worker was not disabled. This finding was based upon the expert testimony of the worker’s medical expert. The Supreme Court stated that the only fair reading of that doctor’s testimony would show that the testimony was exactly the opposite, i.e., the worker should not return to her pre-injury job and was, in fact, disabled. When the Supreme Court applied the capricious disregard standard, it did not engage in fact-finding; rather, it held that the referee’s interpretation of the doctor’s testimony was incorrect. Furthermore, the statement of the majority, quoted above, begs the question when it states that a referee must explain his rejection of “credible” evidence. Only a referee may decide what evidence is credible. This Court simply is prevented from substituting its views of the credibility of any evidence. Arena . I can find nothing in the referee’s decision which would lead me to conclude that he accepted as credible all of the testimony of both doctors. 1 That decision discloses, at a minimum, that the referee did not believe those portions of the doctors’ testimony where each testified that this claimant was capable of doing the *416 jobs because of her residual disability. While it may be true that the referee did believe the medical testimony concerning the claimant’s restrictions, he did not believe that the jobs offered fell within those restrictions. It was within the sole province of the referee to decide if this claimant could perform the jobs. He decided that she could not; therefore, he was correct when he concluded that the employer failed to meet its burden.
. It is true that the referee never specifically rejected any of the evidence on credibility grounds. A reviewing court may infer that such a determination has been made as long as that inference is not based solely upon the fact that the referee made a decision against the party saddled with the burden of proof. Kirkwood . Such an inference may be fairly drawn in this case.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9647984. Public record. Not legal advice.