Latta v. Workmen's Compensation Appeal Board

ZAPPALA Justice,

concurring.

I join the Opinion of the Court with the understanding that on remand the employer shall have the opportunity to introduce evidence to rebut Latta’s testimony that his injury continued between March 3, 1983, and June 10, 1987, or to show that any loss of earnings during that period was not attributable to the injury but was caused by other factors.

At the time of the hearing, the cases required a claimant such as Latta to introduce medical testimony to support a claim for reinstatement of suspended benefits. Indeed, in Latta I, the Board determined that “the record [was] devoid of any medical evidence which would place a burden on the Defendant,” and the Commonwealth Court held that Latta had failed to carry his burden, stating

Claimant testified that he continued to be disabled because of the work-related injury to his right arm, and that he suffered from a number of other ailments. Claimant did not, however, present any medical testimony which substantiated his alleged inability to perform his pre-injury job.

98 Pa.Commw. 56, 61, 510 A.2d 896, 899 (1986) (emphasis added).

Given the status of the law at that time, the employer would have had no reason to introduce such evidence at the hearing. Under these circumstances, it would be unfair to premise reinstatement of benefits on Latta’s testimony alone, without affording the employer an opportunity to rebut it, now that the employer is on notice that it has such a burden.