Dillon v. W.C.A.B. (Greenwich Collieries)

• Decision Date: 20 April 1994
• Citation: 640 A.2d 386,536 Pa. 490
• Parties: Thomas DILLON, Appellant, v. WORKMEN'S COMPENSATION APPEAL BOARD (GREENWICH COLLIERIES), Appellee.
• Court: Pennsylvania Supreme Court

Page 386

640 A.2d 386

536 Pa. 490

Thomas DILLON, Appellant, v. WORKMEN'S COMPENSATION APPEAL BOARD (GREENWICH COLLIERIES), Appellee.

Supreme Court of Pennsylvania.

Argued Sept. 23, 1993.

Decided April 20, 1994.

Alexander J. Pentecost, Amiel B. Caramanna, Jr. and Elizabeth A. Gebhardt, Pittsburgh, for appellant.

Robert G. Rose and James C. Munro, II, Johnstown, for appellee.

Before NIX, C.J., and LARSEN, FLAHERTY, ZAPPALA, PAPADAKOS, CAPPY and MONTEMURO, JJ.

OPINION

ZAPPALA, Justice.

The narrow question in this case arising under the Workmen's Compensation Act is whether the appellant met his burden of proof with respect to his petition seeking to modify an award of compensation for partial disability to one for total disability. To answer this question, however, we must examine the broader issue of what elements make up that burden of proof.

Thomas Dillon suffered a lower back strain while working for Greenwich Collieries on September 13, 1976. Compensation for total disability was paid pursuant to a Notice of Compensation Payable issued September 30, 1976. These benefits were terminated as of May 30, 1978, when Dillon executed a Final Receipt. Dillon received compensation again pursuant to a Supplemental Agreement for a brief period from August 30 to September 11, 1978.

It appears that on November 15, 1978, Dillon suffered another injury, and received compensation for the period through January 21, 1979, when he returned to work at wages equal to or greater than his pre-injury wages. On the day after he returned to work, however (January 22, 1979), Dillon suffered a recurrence of the original back injury. He filed a claim petition, which was later amended to be treated as a reinstatement petition.

Hearing was held on June 20, 1980, and on March 4, 1981, the referee awarded compensation for partial disability, consistent with the stipulation of the parties that there were jobs available of a light and sedentary nature that Dillon could perform given his physical limitations. Benefits were set at a weekly rate of $135.58, being sixty-six and two-thirds per cent of the difference ($203.38) between Dillon's average weekly wage ($319.38) and the wage for a forty hour week at the then-current federal minimum wage of $2.90 per hour ($116).

Dillon continued receiving compensation for partial disability through July of 1982, when he filed a petition for review asserting that as of January 15, 1982, he had become totally disabled. At a hearing on August 3, 1983, this was amended to a petition for modification. The referee received the deposition of Dillon's physician, who indicated that as of the date of examination, January 15, 1982, Dillon was unable to perform the work he had been performing when injured in 1976. He suggested that further vocational rehabilitation testing would be required to determine whether Dillon could engage in any type of selective or restricted duties. Dillon testified about his condition, and stated that while he was willing to try some type of light work, he had searched for such work and found none available.

Greenwich argued that the petition was an improper attempt to attack the unappealed March 4, 1981, award of compensation for partial disability. It also argued that the evidence was insufficient to support the claim for modification, since the physician's testimony did not indicate a change in Dillon's condition from the time of the March 4 award.

On February 6, 1984, the referee ruled in favor of Dillon, and ordered the payment of compensation for total disability as of January 15, 1982. On appeal, the Workmen's Compensation Appeal Board reversed and remanded, finding that the referee had improperly closed the record and decided the case without receiving a physician's deposition that Greenwich had sought to introduce.

After receiving the deposition, the referee again granted the modification petition, making the following relevant findings of fact:

9. Claimant has not been employed at all since he last worked for the defendant during January, 1979.

10. Prior to Referee Moraca's decision dated March 4, 1981, the parties agreed by stipulation that the defendant could show that work was available to the claimant that he could perform within the limitations imposed on him by his partial disability. No evidence of such work availability was submitted by the defendant prior to Referee Moraca's decision, nor has any such evidence been submitted since that decision.

11. Since Referee Moraca's decision the claimant has attempted to find employment but has been unable to do so.

12. Claimant has not shown that there has been any change in his compensable injury since Referee Moraca's decision.

13. Claimant has remained unable to return to his regular work for the defendant from January, 1979 through the present time.

14. This present Referee accepts the testimony of Dr. Vanderschilden and finds as a fact that the claimant is able to perform sedentary work, within the limits stated by Dr. Vanderschilden.

The referee also made the following pertinent conclusions of law:

2. This Referee has concluded that the stipulation as to the availability of work which was submitted to Referee Moraca does not extend beyond the date of Referee Moraca's decision. In reaching this conclusion, this referee has considered that the claimant never returned to any employment, that no evidence as to the availability of such employment has been submitted, and that the claimant has not been able to find employment since Referee Moraca's decision.

3. Claimant in this case is not required to show that his compensable injury has changed since Referee Moraca's decision dated March 4, 1981.

In response to Greenwich's further appeal, on June 5, 1987, the Board again reversed and remanded for new findings of fact and conclusions of law. The Board, citing Mancini v. Workmen's Compensation Appeal Board, 64 Pa.Commw. 484, 440 A.2d 1275 (1982), held that the party seeking a modification has the burden of proof and must show a change in physical condition since the date of the award or agreement sought to be modified. Dillon filed a petition for rehearing, which was granted, but on August 15, 1989, the Board affirmed its previous decision. Dillon's petition for review in Commonwealth Court was quashed as interlocutory, inasmuch as the Board had ordered the matter remanded for further findings of fact and conclusions of law. The referee made no new findings, and applying the law as instructed by the Board dismissed Dillon's petition for modification. The Board subsequently affirmed, incorporating its prior decisions.

On September 22, 1992, the Commonwealth Court affirmed the decision of the Board. The court cited its prior decisions in J & L Steel Corp. v. Workmen's Compensation Appeal Board (Shutak), 145 Pa.Commw. 99, 602 A.2d 467, allocatur denied, 530 Pa. 657, 608 A.2d 32, 530 Pa. 662, 609 A.2d 169 (1992) and Airco-Speer Electronics v. Workmen's Compensation Appeal Board, 17 Pa.Commw. 539, 333 A.2d 508 (1975) as "mandating that a party who seeks modification of an award or agreement for compensation has the burden to produce competent evidence of change in the worker's physical condition since the award or agreement date." Memorandum Opinion at 4. We granted Dillon's petition for allowance of appeal, 534 Pa. 642, 626 A.2d 1160.

Both parties acknowledge that the starting point for analyzing this case is Section 413 of the Workmen's Compensation Act, Act of June 12, 1915, P.L. 736, as amended, 77 P.S. § 772. That section provides that

A referee designated by the department may, at any time, modify, reinstate, suspend, or terminate a notice of compensation payable, an original or supplemental agreement or an award of the department or its referee, upon petition filed by either party with the department, upon proof that the disability of an injured employe has increased, decreased, recurred, or has temporarily or finally ceased, or that the status of any dependent has changed.... And provided further, That where compensation has been suspended because the employe's earnings are equal to or in excess of his wages prior to the injury that payments under the agreement or award may be resumed at any time during the period for which compensation for partial disability is payable, unless it be shown that the loss in earnings does not result from the disability due to the injury.

As we observed in Kachinski v. Workmen's Compensation Appeal Board (Vepco Construction Co.), 516 Pa. 240, 532 A.2d 374 (1987), this section "governs the procedure for filing a modification petition" but it "provides no guidelines for ruling on the merits". 516 Pa. at 244, n. 1, 532 A.2d at 376, n. 1. "[T]o date the General Assembly has seen fit to allow the courts to wrestle with this issue." Id.

The "change in physical condition" requirement may be traced to Henderson v. Air Master Corporation, 2 Pa.Commw. 275, 276 A.2d 581 (1971). In Henderson, the claimant's reinstatement petition seeking compensation for total disability was filed after the claimant had received compensation for partial disability for the entire 350 weeks then authorized under the Act. Unlike compensation for total disability, which has no fixed duration, the Act places a limit on the amount of time that a claimant may receive compensation for partial disability. By the terms of the statute, such compensation ceases when the maximum number of weeks has been reached regardless of whether the claimant's earning power has returned to its pre-injury level or remains at a reduced level on account of the injury.

Henderson had not worked at all since the date of the injury. Under the circumstances, the court viewed his reinstatement petition as an improper attempt to relitigate the original decision awarding him compensation for partial disability rather than for total disability. Thus the court's emphasis on Henderson's failure to show "a change in the percentage...