DocketNumber: Appeal, No. 2993 C. D. 1984
Citation Numbers: 98 Pa. Commw. 479, 512 A.2d 744
Judges: Barry, Blatt, Crumlish
Filed Date: 7/2/1986
Status: Precedential
Modified Date: 6/24/2022
Opinion by
This is an appeal by petitioner, Philadelphia Electric Company, from an order of the Workmens Compensation Appeal Board (Board) approving the referees grant of benefits to claimant/respondent, Robert Rutter, on the basis that his back injury was an aggravation of a pre-existing, work-related injury.
Claimant was a mechanical assistant employed by petitioner since February of 1954. He alleges that on Wednesday, January 22, 1980, while changing a battery, he twisted his back. He worked the next two days but on the evening of January 24, lay down on a sofa in his home and was unable to get up due to the excruciating pain in his back. He was scheduled to work on Saturday, January 25, 1980, the following day, but called off He never reported to work again. He underwent fusion surgery in March of 1980 and June of 1980.
The following are the relevant conclusions drawn by the referee:
1. Claimant sustained a compensable injury on January 22, 1980 by:
a. suffering an aggravation of pre-existing work-related injuries originally sustained in 1965. The incident of January 22, 1980, superimposed upon the back condition caused by these prior injuries caused his present symptomology. Beaver Supermarket v. Workmen's Compensation Appeal Board, 424 A.2d 1023 (Commonwealth Court 1981) or;
b. the arduous physical demands on his job and frequent traumas caused by his requirements of reaching, bending and lifting caused his present disability.
The Board affirmed the referees decision but in a separate opinion emphasized that Dr. Lins testimony did not unequivocally establish that the battery-lifting incident was the cause of claimants injuries. The Board found that Dr. Lin did establish the injury as work-related when he unequivocally testified that the repetí
On appeal, employer argues that the record lacks substantial evidence to support the referees finding that claimant afforded adequate notice to employer of his injury under Sections 311-313 of The Pennsylvania Workmens Compensation Act (Act), Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§631-633, and that the injury was actually work related. Employer also argues that the Board erred in failing to allow it credit for benefits claimant received.
The burden of proof, in a workmens compensation case, to show that he or she has suffered a compensable injury is on the claimant. Stover v. Workmen's Compensation Appeal Board, 85 Pa. Commonwealth Ct. 632, 482 A.2d 1364 (1984). When the party with the burden of proof prevails before the Board our scope of review is limited to determining whether constitutional rights were violated, an error of law was committed or necessary findings of feet were unsupported by substantial evidence. Ford Aerospace v. Workmen's Compensation Appeal Board, 83 Pa. Commonwealth Ct. 584, 478 A.2d 507 (1984).
Employer argues that the referee erred in finding that claimant notified his foreman of the battery-lifting
Employer next contends that the Board erred in accepting the referees finding that employer received the proper 120 days notice under the Act of the January 22, 1980 battery-lifting incident. Employer bases this contention on the fact that the Board, in its opinion, established that the battery-lifting incident, standing alone, was not a compensable injury; rather, the Board found that the repetitive traumas sustained by claimant in the performance of his employment duties were the cause of his injuries, and no notice of this injury was ever afforded employer. Although it is true that the Board granted benefits to claimant under a different theory of recovery, the Board was, nevertheless, correct in pinpointing January 22, 1980, as the date from which the notice requirement began. The injury occurred as a result of the recurring trauma between 1965 and January 22, 1980. The record is clear, in any case, that during those years the employer was award of claimants condition and the effect of the heavy work on this condition. Actual knowledge is sufficient notice under Section 311 of the Act. See Beaver Supermarket v. Workmens
The employer argues that the Board erred by concluding, in the absence of unequivocal medical testimony, that the aggravation of claimants pre-existing condition was work related. The Board, on page 3 of its opinion, states that: “At no time did Dr. Lin unequivocally testify that claimants disability was caused by lifting a battery on January 22, 1980.” Hence, employers claim that Dr. Lin did not unequivocally testify that the battery-lifting incident was the cause of claimants injury was already acknowledged by the Board. The Board went on to find that Dr. Lin did unequivocally testify that claimants condition was caused by repetitive traumas at work aggravating claimants condition. The Board supported this conclusion with the following excerpt from Dr. Lins testimony:
THE WITNESS: Fail, M back, foil back due to multiple degenerative spondylosis of the lumbar spine, especially L4 and L5, due to degenerative changes aggravated by multiple injuries at work over many—over a long period of time.
Q. You are saying that this mans difficulty is as a result of a 1965 injury; am I right?
A. No. I am saying his difficulty is a continuation of injury with his work because there were*485 many occasions I already testified after examining him I gave him hell, I said don’t go back to the heavy work, don’t go back to heavy work. So it is hard to say which one is the culprit of the whole thing.
Q. In other words, it is impossible to say which incident brought this man’s problem about; am I right?
A. Well, except at times he had heavy lifting, he had a severe attack, that attack aggravated preexisting condition.
Q. Except that that flareup dissolved or disappeared, then he was back to his condition before; am I right?
A. That’s about right, with maybe with some worsening condition there was before. I don’t think that that would be completely—
Q. You would never be able to tell or measure that, would you?
A. No, can’t measure, except to say one’s damage is always a certain scar or weakness left with you.
Q. Now, isn’t it possible to tell which incident disabled a man?
A. Weller Are you saying a ’65 incident disabled him:
A. No, I can’t say ’65. I can say that whatever his latest one, preceding surgery is probably the one that necessary—make it necessary to have surgery.
Lin Deposition at 17, 29-30. This testimony by Dr. Lin is sufficiently unequivocal to support the Board’s finding that claimant’s injury was a work-related aggravation of a pre-existing back condition. Given this feet, claimant’s failure, in his contact with Dr. Lin and the employer
Finally, the employer argues that the Board erred in not granting employer a credit against the future workmens compensation benefits to be paid claimant for the sickness and accident benefits employer alleges claimant received. We note preliminarily that the Board did grant employers request for a credit for full wages paid to claimant for the first year of his disability. It did so on the basis of claimants admission that he received his full salary. Claimant admitted that he also received the benefits- after his full salary was terminated.
Where the compensable injury is caused in whole or in part by the act or omission of a third party, the employer shall be subrogated to the right of the employe, his personal representative, his estate or his dependents, against such third party to the extent of the compensation payable under this article by the employer; reasonable attorney’s fees and other proper disbursements incurred in obtaining a recovery or in effecting a compromise settlement shall be prorated between the employer and employe, his personal representative, his estate or his dependents. The employer shall pay that proportion of the attorney’s fees and other proper disbursements that the amount of compensation paid or payable at the time of recovery or settlement bears to the total recovery or settlement. Any recovery against such third person in excess*487 of the compensation theretofore paid by the employer shall be paid forthwith to the employe, his personal representative, his estate or his dependents, and shall be treated as an advance payment by the employer on account of any future instalments of compensation.
Where an employe has received payments for the disability or medical expense resulting from an injury in the course of his employment paid by the employer or an insurance company on the basis that the injury and disability were not compensable under this act in the event of an agreement or award for that injury the employer or insurance company who made the payments shall be subrogated out of the agreement or award to the amount so paid, if the right to subrogation is agreed to by the parties or is established at the time of hearing before the referee or the board. (Footnote omitted.)
In applying Section 319 to the facts before us we find that employer has foiled to show entitlement to a credit for the benefits. Although no doubt exists that employer originally believed claimants injury to be noncompensable under the Act, employer has foiled to meet the other requirements of Section 319. In Workmens Compensation Appeal Board v. Olivetti Corp., 26 Pa. Commonwealth Ct. 464, 364 A.2d 735 (1976), we declined to grant Olivetti Corporation a credit on future installments of compensation paid to the claimant when the record contained no evidence of the subrogation agreement between the parties and the testimony showed that the sickness and accident insurance carrier, rather than the employer, made the payments of the benefit to claimant but foiled to join the proceedings to assert its right to subrogation. Our review of the record shows that there is no evidence of a subrogation agree
Hence, employer has foiled to produce sufficient evidence to show entitlement to credit for benefits received by claimant.
Accordingly, we affirm the Board.
Order
Now, July 2, 1986, the order of the Board, No. A-84751, dated September 27, 1984, affirming with modifications the decision of the referee dated October 4, 1982 is affirmed. .
The record shows claimant had a fusion of L-4 and L-5 interspace in March of 1980 and L-5, S-l in June of 1980.
The Beneficial Association is not clearly identified in the record and we cannot determine if it is an insurance company, an organization created by the employer or some other entity.
The Beneficial Association is not clearly identified in the record and we cannot determine if it is an insurance company, an organization created by the employer or some other entity.