Barrett v. Otis Elevator Co.
| Decision Date | 03 October 1968 |
| Citation | 431 Pa. 446,246 A.2d 668 |
| Parties | Michael P. BARRETT, Claimant, Appellant, v. OTIS ELEVATOR COMPANY, Defendant and Employers' Liability Assurance Corporation, Insurance Carrier. |
| Court | Pennsylvania Supreme Court |
Thomas J. Foley, Sr., Ralph P. Needle, Leo G. Knoll Rosser, McDonald, Marcus & Foley, Joseph E. Gallagher O'Malley, Morgan, Bour & Gallagher, Scranton, for appellant.
James M. Howley, James M. Scanlon, Scranton, for appellees.
Before BELL, C.J., and MUSMANNO, JONES, COHEN, EAGEN O'BRIEN and ROBERTS, JJ.
This case has a long and rather confused history which will be simplified in order to quickly frame the question raised on this appeal.
Michael P. Barrett (hereinafter the Claimant) petitioned the Workmen's Compensation Board (hereinafter Board) for an award in accordance with the provisions of the Pennsylvania Workmen's Compensation Act, The Act of June 2, 1915, P.L. 736, 77 P.S. § 1 et seq., alleging that he had incurred a disability as the result of an accident which occurred in the course of his employment for Otis Elevator Company (hereinafter the Employer). After considering the conflicting testimony of four medical doctors, the Board found that the claimant was totally disabled from December 8, 1961, to March 10, 1962, and 40 per cent disabled for an indefinite period thereafter. The claimant excepted to the Board's finding that his disability was only partial after March 10, 1962, and he appealed to the Court of Common Pleas of Lackawanna County. On remand from that court, the Board clarified and reaffirmed its finding and the claimant again appealed. The Court of Common Pleas of Lackawanna County dismissed the appeal on the ground that the challenged finding does not capriciously disregard competent evidence. The Superior Court affirmed per curiam, without opinion. This Court then granted allocatur. On September 26, 1967, we filed an opinion affirming the lower courts. Thereafter, we granted a petition for reargument to reconsider the question of whether or not the Board's finding of partial disability should be sustained in the light of the decisions in Kirk v. L. Bauer, Jr., Inc., 209 Pa.Super. 357, 228 A.2d 228 (1967), and Petrone v. Moffat Coal Co., 427 Pa. 5, 233 A.2d 891 (1967).
The claimant's first objection to the Board's finding that he is only partially disabled is that the finding is based on the testimony of a medical doctor that fails to place the claimant's physical impairment in the context necessary to relate the accidental injury to a loss of earning power [1] which, of course, is the relevant question under the Pennsylvania Workmen's Compensation Act, supra. [2] The claimant points to Kirk v. L. Bauer, Jr., Inc., supra, in which the Superior Court held that a finding of partial disability was not supported by competent evidence because the testimony of a medical doctor reflected the same weaknesses that claimant alleges exist in this case. Claimant concludes that here, as in Kirk, the Board's finding also should be rejected.
Although the medical testimony in this case, as in Kirk, may not have been competent, this defect could not be a ground for reversal given the limited nature of our appellate review. Courts do have the power to determine whether or not the Board's findings of fact are supported by competent evidence. Vorbnoff v. Mesta Machine Co., 286 Pa. 199, 205--206, 133 A. 256, 257--258 (1926), but it is established that, on appeal from a decision of the Board by the party having the burden of proof, the Board's findings of fact must be sustained unless they capriciously disregard competent evidence or unless they are inconsistent with each other or with either the Board's conclusions of law or its order. [3] In Kirk, the employer, who petitioned the Board for the modification of an agreement providing total disability benefits for the injured employee, had the burden of proving that the employee was not totally disabled. The Board found that the employee was only partially disabled, granted the employer's petition, and the employee appealed. Thus, the question on the appeal by the employee, who did not have the burden of proof, was whether or not the finding that he was partially disabled was supported by competent evidence. On the other hand, in this case the claimant concedes, with reference to this objection to the finding, that he has the burden of proof and he recognizes that, consequently, the standard of review is whether or not the Board capriciously disregarded competent evidence. [4]
The flaw in claimant's argument is that it confuses two different standards of appellate review. Claimant argues that the Board's finding that he is only partially disabled capriciously disregards competent evidence because it is unsupported by competent evidence. [5] It should be obvious that this argument is a non sequitur. A finding that is completely unsupported by competent evidence does not capriciously disregard competent evidence if there is not competent evidence to support a contrary finding. Actually the claimant's argument echoes a confusion which both the Superior Court and this Court have attempted frequently to dispel. Thus, the Superior Court has said: 'Where the compensation authorities have found against the party having the burden of proof, in this case the claimant, the question on appeal is not whether the findings of fact are supported by sufficient competent evidence but rather whether there has been a capricious disregard of the competent evidence * * *.' Bogan v. Smoothway Construction Co., 183 Pa.Super. 170, 176, 130 A.2d 207, 210 (1957). Quite recently, in the same procedural context, this Court has said: 'the question on review is not whether the evidence would sustain the board's finding but whether there was a capricious disregard of the competent evidence. * * *' Lowery v. Pittsburgh Coal Co., 427 Pa. 576, 577--578, 235 A.2d 805, 807 (1967).
It is unnecessary to analyze the record in detail to determine whether or not the Board's finding capriciously disregards competent evidence because the claimant's second argument, that the finding is erroneous as a matter of law, is meritorious.
The claimant notes that in Petrone v. Moffat Coal Co., supra, the Board's finding that the claimant was partially disabled because he could do 'light work of a general nature,' which the Board presumed was available to claimant, was not sustained when the record contained no evidence that such work was available to a person of claimant's limitations. Claimant argues that in this case, as in Petrone, the Board's finding that claimant is partially disabled should not be sustained because the record contains no evidence that work is available to someone of claimant's limitations. The employer responds that in Petrone the finding that the claimant was partially disabled was rejected because it rested on the ability of the claimant to do only light work of a general nature and on the economically unrealistic presumption that such work is available to someone capable of performing it. The employer argues that because the finding of partial disability in this case does not rest on the claimant's ability to do only light work of a general nature and on the rejected presumption, but rather on his ability to do any type of work, Petrone is not controlling.
Simply stated, the issue between the parties is whether or not the decision in Petrone, which puts on the employer the burden of proving availability of light work of a general nature to a claimant who can do only such work, should be narrowly limited or should be extended to place the burden on the employer of proving the availability of any type of work to an injured employee. To intelligently resolve this issue, the fact to be proven must be closely analyzed with reference to the considerations which underlie the apportionment of burden of proof. Unfortunately, neither party has assisted the Court in this analysis, so we are forced to rely on our own research and thinking.
If the existence or non-existence of a fact can be demonstrated by one party to a controversy much more easily than by the other party, the burden of proof may be placed on that party who can discharge it most easily. [6] Thus, although the applicant for disability benefits under the Social Security Act prior to the 1965 Amendments had the burden of proving that he was unable to engage in any 'substantial, gainful activity,' see 42 U.S.C.A. § 423(c)(2) (1964) the federal courts held that, once the applicant had shown that he was unable to do the type of work that he formerly did, the Secretary of Health, Education and Welfare had the burden of proving that other work was available which the applicant could perform. This allocation of the burden of proof appears to have been based, at least in part, on the fact that employment information is more easily available to the Secretary of Health, Education and Welfare than to the applicant. [7]
Although the person from whom compensation is sought in the federal social security cases may well have easy access to employment information, it does not appear that the same is true in the typical state workmen's compensation case. With the rare exceptions of employment agencies and possibly very large industrial concerns which have employment offices, the person from whom compensation is sought in workmen's compensation cases has no more access to employment information than does the claimant. Consequently, this consideration appears to have no bearing on whether the claimant or the employer should have the burden of proof on the question of the availability of jobs to an injured workman.
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