Kochinsky v. Independent Pier Co.
| Decision Date | 05 March 1945 |
| Citation | 41 A.2d 409,157 Pa.Super. 15 |
| Parties | Kochinsky v. Independent Pier Company et al., Appellants |
| Court | Pennsylvania Superior Court |
Argued September 29, 1944.
Appeal, No. 84, Oct. T., 1944, from order of C. P. No. 2 Phila. Co., December T., 1942, No. 1609, in case of John Kochinsky v. Independent Pier Company et al.
Appeal by claimant from decision of Workmen's Compensation Board terminating compensation.
Appeal sustained, decision of Board reversed and record remitted to Board, opinion by Gordon, P. J. Defendants appealed.
Frederick L. Fuges, with him Ralph N. Kellam, for appellants.
EdwardI. Weisberg, with him Maurice Freedman, for appellee.
Claimant received a back injury on July 26, 1938, in the course of his employment with defendant as a stevedore. He was paid compensation for total disability under an agreement approved August 23, 1938. On December 8, 1938, the employer filed a petition to terminate. After hearing, this initial petition to terminate was dismissed and no appeal taken from the action of the Workmen's Compensation Board by the employer. The employer continued paying compensation to claimant until October 22, 1940, when it filed a petition under the second paragraph of section 413 of the Act of June 2, 1915, P. L. 736, reenacted and amended by the Act of June 21, 1939, P. L. 520, 77 PS § 772, alleging that "Claimant's disability decreased to 50% on or before October 7, 1940." This petition is the basis of the present appeal.
Claimant filed a responsive answer denying his disability had decreased to 50% and alleging it remained the same. A hearing was held before a referee. The employer offered the testimony of a private detective who followed claimant and took moving pictures of him in an effort to show that claimant was malingering. The employer's medical expert testified that claimant's disability was reduced to a 50% disability. Claimant's medical experts testified that claimant's condition had not improved and that he remained totally disabled. The referee made a finding of 65% partial disability.
Claimant appealed to the board which, in view of the diversity of medical opinion presented by the experts on each side, ordered an impartial expert appointed to examine claimant and report at a hearing before the referee. The impartial medical expert, Dr. Thomas J. Ryan, testified he did not believe claimant was suffering to the extent he claimed, and that, in his opinion, claimant was able to do the work of a stevedore. Whereupon, claimant's counsel asked leave to present expert testimony in rebuttal. At an adjourned hearing claimant produced Dr. G. S. Levinthal who testified claimant was totally disabled when he examined him on January 23, 1942.
The referee, on May 6, 1942, found all disability ceased as of October 1, 1941, and ordered compensation terminated as of that date. On appeal by claimant, the board affirmed the findings of the referee, stating, inter alia: (Italics supplied.)
The court below, on appeal, held that there was ample testimony to support the board's findings, but felt required to reverse the board on a matter of pleading. It held that, as defendant's petition of October 22, 1940, did not ask for complete termination but only for a modification to the extent of 50% disability, the board had no power to give defendant more than it asked for. The court felt that to this extent defendant was confined to the relief asked for in its petition to modify. Accordingly it reversed the board and ordered an award made to claimant -- apparently to the extent of a 50% partial disability.
We are of the opinion that the case must be returned to the board.
We do not agree with the court below that the board was precluded, under the pleadings and procedure in this case, from accepting the testimony of the impartial expert, if, as the fact-finding body, it felt his testimony was conclusive, and entering an order terminating compensation. Proceedings before the compensation authorities are not "litigation," and the strict rules of pleading and practice applicable to common law actions do not apply. The courts take a liberal attitude toward the pleadings in compensation cases and consider the substance of the relief prayed for rather than its form. Virtue v. J. Lee Plummer, Inc., et al., 111 Pa.Super. 476, 479, 170 A. 443; Thatcher v. Weinstein et al., 154 Pa.Super. 368, 373, 35 A.2d 549; Hill v. Booth & Flinn Co. et al., 146 Pa.Super. 575, 580, 23 A.2d 85.
Of course, the parties are entitled to know the issue in any particular proceeding so that they may be prepared to meet it by proper evidence. There are certain minimum standards, and the rules of pleading must be observed in a broad and general sense. For instance, it may be said that an employer cannot equitably invoke the remedy of modification or termination without complying with the provisions of the statute. Brusco v. Philadelphia Rapid Transit Co., 148 Pa.Super. 97, 100,...
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