interpreting state law allowing referee to terminate claimant’s benefits upon finding that claimant’s work-related disability has entirely ceased
How later courts described this case
- interpreting state law allowing referee to terminate claimant’s benefits upon finding that claimant’s work-related disability has entirely ceased
Written by the judges who cited it.
The opinion
DOYLE, Judge,
dissenting.
I respectfully dissent.
As the majority correctly notes, the single issue raised on appeal here is whether the “capricious disregard standard” is the appropriate one in this case or whether the Workmen’s Compensation Appeal Board (Board) should have used the “substantial evidence test” when conducting its review.
It is Daniel Iacono’s (Claimant’s) position that because evidence was presented on both sides the proper scope of review for the Board and this Court to employ is the substantial evidence test. He cites Victor’s Jewelers v. Workmen’s Compensation Appeal Board (Bergelson), 145 Pa.Commonwealth Ct. 630, 604 A.2d 1127 (1992), in support of his position. Employer, however, asserts that because Claimant did not present medical evidence to rebut Employer’s medical evi *246 dence that Claimant’s work-related disability had ceased, the capricious disregard standard applies. In support of this proposition it cites Farquhar v. Workmen’s Compensation Appeal Board (Coming Glass Works), 515 Pa. 315 , 528 A.2d 580 (1987).
In Farquhar our Supreme Court made clear that the referee, Board and this Court had all erred because they had “capriciously disregarded uncontradicted medical testimony and evidence” in the context of the claimant’s petition to reinstate suspended benefits. In that case the claimant had presented medical evidence in support of her petition; the employer had presented no evidence. The referee, however, rejected the claimant’s medical evidence giving as his only reason a basis not supported by the record. The Court opined that “[a]t the very least the findings and conclusions of the fact finder must have a rational basis in the evidence of record and demonstrate an appreciation and correct application of underlying principles of substantive law to that evidence.” Id., 515 Pa. at 324 , 528 A.2d at 584-85 (emphasis omitted).
Based upon that language in Farquhar , this Court has ruled that “a referee may not ‘reject’ credible and uncontradicted medical evidence without explaining why the evidence is ‘rejected’.” Acme Markets, Inc. v. Workmen’s Compensation Appeal Board (Pilvalis), 142 Pa. Commonwealth Ct. 400, 406 , 597 A.2d 294, 297 (1991) (emphasis in original). What no case has yet made clear, however, is that when deciding whether the capricious disregard standard applies the inquiry is not only whether both sides have presented evidence, but whether both sides have presented competent evidence on the same issue. An examination of Victor’s Jewelers serves as an excellent example of what I mean.
In that case, as here, the claimant in response to an employer’s termination petition testified that he still experienced pain. Clearly a claimant is competent to so testify and Victor’s Jewelers so held. Unlike the case at bar, however, there was no indication in Victor’s Jewelers that the employer was alleging that the pain was due to a non-work related *247 preexisting condition. That is Employer’s theory here. 1 Employer here acknowledged that Claimant may experience pain; it asserts, however, that that pain is not being caused by Claimant’s work-related injury. Clearly Claimant is not competent to testify as to what is causing his present pain, the work-related lumbar sprain or his preexisting arthritis and degenerative disease and, indeed, did not ever do so because there is no obvious causal connection between the pain and either injury. There is, therefore, no competent medical evidence presented to rebut Employer’s competent medical evidence on the lack of a continuing work-related injury as a basis for Claimant’s pain. Accordingly, the capricious disregard of competent evidence standard must be applied here. Cfi Hebden; Koszowski (where employer’s theory in termination proceeding was that continuing disability was not work-related, and.both parties presented expert medical evidence on this issue, the substantial evidence test was employed).
Because I believe that the Board properly employed the capricious disregard standard in this case, I would affirm its order.
McGINLEY, J., joins in this dissent.
. An employer can prevail in a termination proceeding if it demonstrates that the work-related disability has ceased. Koszowski v. Workmen's Compensation Appeal Board (Greyhound Lines, Inc.), 141 Pa.Commonwealth Ct. 253, 595 A.2d 697 (1991). It is the employer’s burden to show the lack of a causal connection between any existing disability and the compensable work-related injury. Hebden v. Workmen’s Compensation Appeal Board (Bethenergy Mines, Inc.), 142 Pa.Commonwealth Ct. 176, 597 A.2d 182 (1991), petition for allowance of appeal granted, 529 Pa. 659 , 604 A.2d 251 (1992).