# Tynan v. Workmen's Compensation Appeal Board

> Commonwealth Court of Pennsylvania · March 9, 1994 · 162 Pa. Commw. 393

URL: https://www.frixlaw.com/law-library/cases/9735352

## Case

- **Full name:** Helen TYNAN, Petitioner, v. WORKMEN’S COMPENSATION APPEAL BOARD (ASSOCIATED CLEANING CONSULTANT AND SERVICES, INC.), Respondent
- **Court:** Commonwealth Court of Pennsylvania
- **Decided:** March 9, 1994
- **Citations:** 162 Pa. Commw. 393; 639 A.2d 856; 1994 Pa. Commw. LEXIS 109
- **Precedential status:** Published
- **Opinion:** Concurrence by Friedman
- **Judges:** Doyle, Friedman, Narice
- **Cited by:** 8 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9735352

## How later opinions describe it (automated extraction)

- holding that a medical report must be corroborated by other competent evidence

## Opinion text

FRIEDMAN, Judge,
concurring.
Based on Gallick v. Workmen's Compensation Appeal Board (Department of Environmental Resources, Bureau of Human Resources Management), 108 Pa.Commonwealth Ct. 617, 530 A.2d 945 (1987), I too would reject Employer’s only offered evidence as uncorroborated hearsay and would hold that for lack of substantial competent evidence in the record, Employer failed to meet his burden of proving that Tynan’s work-related disability ceased on September 7, 1990. However, although I agree with the majority’s result on the relevant issue in this case, I write separately to note my belief that the majority utilized the incorrect standard of review to arrive at that result. Instead, I agree with Tynan, albeit for different reasons, that the substantial evidence standard applies here.
We recently reconsidered our varying standards of review in Iacono v. Workmen’s Compensation Appeal Board (Chester Housing Authority), 155 Pa.Commonwealth Ct. 234, 624 A.2d 814 (1993). 1 In Iacono , the WCAB reversed a referee’s denial *401 of an employer’s termination petition, reasoning that because the employer was the only party to present medical evidence relating to the cause of the claimant’s disability, thereby presenting the only competent evidence on that issue, the capricious disregard standard applied. We disagreed. Determining that review under the substantial evidence test was proper, we reversed the WCAB and reinstated the referee’s denial. In reaching this conclusion, we initially set forth the principles governing termination proceedings, stating:
[A]n employer seeking to terminate workmen’s compensation benefits bears the burden of proving either that the employee’s disability has ceased, or that any current disability arises from a cause unrelated to the employee’s work injury. McGee v. L.F. Grammes & Sons, 477 Pa. 143 , 383 A.2d 864 (1978); Central Pennsylvania Community Action, Inc. v. Workmen’s Compensation Appeal Board (Probeck), 103 Pa.Commonwealth Ct. 278, 520 A.2d 112 (1987); McGinley v. Workmen’s Compensation Appeal Board (Acme Markets, Inc.), 77 Pa.Commonwealth Ct. 214, 465 A.2d 147 (1983). “This burden is considerable, for disability is presumed to continue until demonstrated otherwise.” Olivetti Corp. v. Workmen’s Compensation Appeal Board (Robinson), 75 Pa.Commonwealth Ct. 584, 586, 462 A.2d 934, 936 (1983), quoting Workmen’s Compensation Board ex rel. Mailka v. F.W. Woolworth Co., 19 Pa.Commonwealth Ct. 413, 415, 338 A.2d 784, 785 (1975). Thus, once a claimant establishes his right to benefits, those benefits remain in effect unless and until the employer satisfies its burden of proving entitlement to termination. Olivetti. There is no burden on the claimant to prove anything at all. Probeck. In essence, in order to prevail in a termination action, the employer must disprove the claimant’s existing, continuing right to benefits, in support of which the claimant has *402 already established that his injury arose in the course of his employment and was causally related thereto. See Halaski v. Hilton Hotel, 487 Pa. 313 , 409 A.2d 367 (1979).
Iacono , 155 Pa.Commonwealth Ct. at 241-42, 624 A.2d at 817-18 .
Applying these principles, we determined that in a termination proceeding, the presumption of an employee’s continuing disability and its causal connection to his employment, having been established previously in conjunction with his initial receipt of benefits, constitutes evidence before the referee. Based on this determination, we concluded in Iacono that the claimant’s failure to present competent evidence regarding the cause of his disability was irrelevant in a termination proceeding. We reasoned that because this causal connection had already been acknowledged by his employer through the payment of worker’s compensation benefits, 2 competent evidence regarding the cause of his continuing pain already existed before the factfinder.
Here too, Dr. Riemer’s report was not the only evidence before the factfinder; the referee also had pre-existing evidence in support of Tynan. Because this was a termination proceeding, the existence of Tynan’s work-related disability was evidence before the factfinder, which Employer had to disprove in order to end benefits. Indeed, because the unburdened party always has this evidence before the referee in a termination proceeding, I believe that application of the capricious disregard standard is never appropriate in such cases.
In fact, application of the substantial evidence standard of review is even more clearcut here than in Iacono . Because the only evidence offered by Employer was incompetent hearsay, Employer was in the position of having offered no evidence at all. We have held that when the party without the burden of proof does not present any competent evidence, it is as if that party presented no evidence at all. See Kondrat v. *403 Workmen’s Compensation Appeal Board (Westinghouse Electric Corp.), 145 Pa.Commonwealth Ct. 428, 603 A.2d 689 (1992). The same principle must apply to the burdened party. Thus, unlike the situation in Iacono , the referee here had only the evidence of the unburdened party to consider, making the capricious disregard standard inapplicable.
. Where the burdened party is the only party to present evidence and does not prevail before the referee, the WCAB and this court must determine whether the referee erred as a matter of law or capriciously disregarded competent evidence. Czap v. Workmen’s Compensation *401 Appeal Board (Gunton Corp.), 137 Pa.Commonwealth Ct. 612, 587 A.2d 49 (1991). When both parties present evidence before the factfinder, however limited, that scope of review is limited to determining whether constitutional rights have been violated, an error of law committed, or whether any necessary finding of fact is unsupported by substantial evidence. Lautek Corp. v. Unemployment Compensation Board of Review, 138 Pa.Commonwealth Ct. 547, 588 A.2d 1007 (1991).
. Iacono received benefits pursuant to a Notice of Compensation Payable; however, in Iacono , we specifically noted that the same causal connection was established whether the claimant received benefits in this manner or as a result of a referee’s determination of eligibility.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9735352. Public record. Not legal advice.