Sun Oil Co. v. Workmen's Compensation Appeal Board

SILVESTRI, Senior Judge,

concurring and dissenting.

Sun Oil Company (Sun Oil) does not challenge the award of medical expenses incurred as a result of surgeries and treatments to the cervical portion of Beverly K. Thompson’s (Thompson’s) spine 1 nor does it contest, with the noted excep *444 tion of the years 1984-1986, the referee’s finding that Thompson was disabled from any gainful employment 2 due to the injuries sustained in the October 20, 1976 motor vehicle accident. I concur insofar as the majority affirms the award of compensation benefits and medical expenses that are not in dispute; however, I disagree with the majority’s affirmance in all other material respects and I dissent.

Sun Oil raises only the following two questions, which are set forth in the statement of issues presented portion of its brief: 3

I. Did the Workmen’s Compensation Appeal Board err in affirming the Decision of the Referee where claimant failed to produce any documentation to prove her assertion that she had “no appreciable income” in 1984, 1985, and 1986, despite the fact that claimant was maintaining her own law practice, employing other attorneys, law clerks, and secretarial help?

II. Did the Workmen’s Compensation Appeal Board err in affirming the Decision of the Referee in finding that claimant had presented substantial, competent medical evidence linking her various surgeries to her original work-related injury?

Sun Oil, in support of the first question, asserts that the findings of the referee that Thompson had no income for the *445 years 1984-1986 are not supported by the evidence of record, and secondly, the Board erred as a matter of law in imposing the burden on Sun Oil to present evidence that Thompson did have income during the period 1984-1986.

In granting Thompson’s petition for modification, the referee made Finding of Fact No. 7, which provides in pertinent part as follows:

s. From January 1, 1984 through December 31, 1984, Claimant was disabled from any gainful employment due to the injuries sustained in the October 20, 1976 motor vehicle accident. During this calendar year, Claimant was hospitalized on four (4) different occasions for a period of thirty one (31) days. Although Claimant was able to perform a minimal amount of work, she earned no wages for performing that work.

t. During the calendar year 1985, Claimant was rarely able to work. Although Claimant did perform some legal services on this rare basis, Claimant received no income for her services.

u. During calendar year, 1986, Claimant was rarely able to work. Although Claimant performed some legal services, Claimant earned no income during 1986.

As the majority correctly notes, Thompson presented tax returns for the years 1976, 1977, 1980, 1981, 1982 and 1983 along with employment records for 1978 and 1979. The majority also correctly notes that Thompson did not produce tax returns or any other employment records for the year 1984-1986. Significantly, Thompson did not testify that she had “no income” for the years 1984-1986 but rather testified on cross-examination that she had no “appreciable income” during that period. (R.R. 613a.) Thompson’s self-serving statements that she had no “taxable or appreciable income” during 1984, 1985 and 1986 as a reason for not having filed income tax returns for those periods 4 does not constitute *446 evidence of record from which the referee could find that she had “no income” during those years. Accordingly, the referee’s Finding of Fact No. 7(s-u), namely that Thompson had no income during the years 1984-1986, are not supported by substantial competent evidence.

As to Sun Oil’s second argument, which is not addressed by the majority, the Workmen’s Compensation Appeal Board (Board), in affirming the decision of the referee, stated:

Claimant testified that she was not able to present any documentation pertinent to filing income tax returns for 1984, 1985, and 1986 because she did not file returns for those years since she had no appreciable income. Defendant argues that since Claimant, a lawyer who completed law school after her auto accident, showed gross receipts from her law practice in 1982 of $111,510 and $150,214 in 1983, that it was not reasonable to believe that she had no appreciable income the following years. We have reviewed this record and find that Defendant has submitted no independent evidence or contradictory evidence regarding Claimant’s capacity to earn income from private law practice in the years 198k, 1985, and 1986, given Claimant’s periods of disability, hospitalizations, surgeries, expenses, etc. Thus, the Referee has accepted Claimant’s uncontradicted testimony regarding her earnings or lack thereof for those years. His findings thereon certainly are supported by evidence of record.

(R.R. 642a-643a.) (Emphasis added.)

Sun Oil contends that the burden of proof was upon Thompson to demonstrate a loss of earnings and that it was not required to produce contradictory evidence of the same. When, as here, a claimant seeks to have a suspension of benefits lifted, the claimant is required to demonstrate only that the reasons *447 for the suspension no longer exist. Pieper v. Ametek-Thermox Instruments Division, 526 Pa. 25 , 584 A.2d 301 (1990); Stuart Painting Company v. Workmen’s Compensation Appeal Board (Asvestas), 148 Pa.Commonwealth Ct. 411, 611 A.2d 787 (1992). “Simply, a claimant must show that while his disability has continued, his loss of earnings has recurred.” Pieper, 526 Pa. at 33 , 584 A.2d at 304 . Thus, Sun Oil was not required to submit independent or contradictory evidence regarding Thompson’s capacity to earn income from private law practice and the Board erred by placing such a requirement upon Sun Oil. Thompson’s testimony that she had no “appreciable income” from the practice of law during 1984, 1985 and 1986, demonstrates that she did have income. Having so established by her own testimony, it was incumbent upon Thompson, and not Sun Oil, to establish the extent thereof in order to enable the referee and the Board to make a determination as to whether or not there was a recurrence of a loss of earnings. There being no substantial and competent evidence to support the findings of the referee that Thompson earned no income during 1984,1985 and 1986, the Board erred in affirming the referee.

As to the second question, Sun Oil contends that the Board erred in finding that Thompson presented substantial, competent medical evidence linking her “various surgeries” to her original work-related injury. The essence of Sun Oil’s argument is that the medical services, in the form of surgery, diagnostic treatment, and physical therapy, rendered to the lumbar portion of Thompson’s spine, were not necessary nor reasonably related to her original work-related injury. Thus, while conceding that Thompson’s neck injury was related to the October 20, 1976 motor vehicle accident, Sun Oil contends that Thompson failed to establish that the medical services rendered to her lower back were related to the original work-related accident.

The majority correctly notes that Dr. O’Connor, in his deposition of September 24, 1984, testified that the neck surgeries which he performed on Thompson, namely the cervical root decompression of May 28,1982 and the anterior fusion *448 of March 2, 1983, were causally related to her accident of October 20, 1976. Significantly, at the time of his deposition on September 24, 1984, Dr. O’Connor had not yet performed any back surgery on the lumbar portion of Thompson’s spine; however, Dr. O’Connor did testify that surgery in the nature of a lumbar laminectomy was scheduled to be performed on Thompson by him in October of 1984, the purpose of which was to relieve her low back pain.

The record demonstrates that Dr. O’Connor did in fact perform the lumbar laminectomy in October of 1984. Significantly, during the September 24, 1984 deposition, Dr. O’Con-nor was neither asked nor did he testify that the lumbar laminectomy proposed for October of 1984 was in any way causally related to the 1976 automobile accident. Furthermore, after performing the lumbar laminectomy in October of 1984, Dr. O’Connor was not called by Thompson to testify as to the causative relationship between the surgery he performed to the lumbar portion of Thompson’s spine and her automobile accident of October 1976.

Dr. Bruno testified that he performed back surgery on Thompson in the nature of a disc aspiration on May 10, 1985 and a lumbar laminectomy on May 17, 1985. Dr. Bruno testified that the surgeries which he performed on Thompson’s back were necessary due to the previous surgery that she had had in October of 1984, that being the lumbar laminectomy performed by Dr. O’Connor. No where in the record does Dr. Bruno ever opine that the surgeries which he performed on the lumbar portion of Thompson’s spine were in any way related to the October 20, 1976 automobile accident or to the neck surgeries performed by Dr. O’Connor in 1982 and 1983. The portion of Dr. Bruno’s testimony relied upon by the majority as sufficiently supplying the causal link between the surgery and the work injury is taken out of context. Dr. Bruno, in offering the statement relied upon by the majority, was responding to the following question:

Q Doctor, I want you to assume that on September 24, 1984, Dr. Michael O’Connor previously testified in this case and opined that the lumbar laminectomy that he was *449 to perform on Miss Thompson in October of 1984, and which was later performed by him on the 19th of October, was causally related to the October 20, 1976 automobile accident.

Now, based upon that assumption and the treatment that you provided to Miss Thompson from March of 1985 through September of 1985, do you have an opinion based upon a reasonable degree of medical certainty as to whether there is any relationship between the two pieces of surgery performed by you, that is the disc aspiration and the lumbar laminectomy, and the October 20, 1976 automobile accident? (R.R. 518a-519a) (Emphasis added).

As previously noted, Dr. O’Connor was deposed prior to having performed the 1984 lumbar laminectomy. Equally significant is the fact that Dr. O’Connor never opined, as suggested by the question, that Thompson’s 1984 lumbar laminectomy was causally related to the 1976 automobile accident. Accordingly, the question as put forth to Dr. Bruno was based upon an erroneous assumption and as a result, any answer given in response thereto cannot serve as a means of supplying the causative link between Thompson’s back surgeries of 1985 and her work-related injury of 1976. Accordingly, I disagree with the majority’s conclusion that there was sufficient evidence to convince a reasonable mind that there was a causal link between the lumbar surgeries performed by Drs. O’Connor and Bruno and Thompson’s work injury.

Having determined that Thompson failed to establish a loss of earning power for the years 1984-1986 and also failed to establish a causative link between the October 20, 1976 accident and the medical expenses incurred after March 16, 1983, I would vacate the order of the Board and remand the matter with directions to remand to the referee to recalculate compensation benefits and medical expenses consistent with this dissent.

. The referee made an award for medical expenses, as set forth in Finding of Fact No. 25, totaling $110,976.76, for various services beginning August of 1981 through June of 1985. It is Sun Oil’s contention that the medical expenses, incurred after March 16, 1983, totaling approximately $68,304.00, were not necessary nor reasonably related to Thompson’s work-related accident in October of 1976 as those expenses were attributable to the medical services rendered to the lumbar portion of Thompson's spine. Sun Oil does not contest the medical expenses incurred prior to March 16, 1983 totaling approxi *444 mately $42,672.76 as those expenses were attributable to medical services rendered to the cervical portion of Thompson's spine.

. In Finding of Fact No. 7, the referee found that from October 3, 1977 through May 26, 1989, Thompson continued to suffer from the injuries sustained in the 1976 automobile accident and that those injuries produced various levels of disability which, in turn, permitted Thompson to work only on an intermittent basis.

. In the argument portion of its brief, Sun Oil also asserts that following the decision of the referee, Thompson was suspended from the practice of law for two years beginning May 17, 1991 for misappropriation of funds. Sun Oil contends that a remand is necessary in light of the possible existence of certain income records which Thompson claimed did not exist at the time of the compensation proceedings. However, pursuant to Pa. R.A.P. 2116(a) which mandates that no point will be considered which is not set forth in the statement of questions involved or suggested thereby, this Court is precluded from addressing this particular contention.

. While not containing any specific reference to the maintenance of business records, the Pennsylvania Rules of Professional Conduct inferentially, impliedly, and necessarily require that a lawyer should be competent, prompt and diligent in all professional functions. See, *446 Preamble: A Lawyer’s Responsibilities. Additionally, a lawyer’s conduct regarding business and personal affairs should conform to the requirements of the law. Id. Accordingly, the aforementioned requirements mandate, at a minimum, that a lawyer charged with the responsibility of administering a law firm, as here, keep records of such affairs as a sound business practice and. file business and personal income tax returns as required by both federal and state law.