Meden v. W.C.A.B. (Bethenergy Mines, Inc.)

Citation647 A.2d 620,167 Pa.Cmwlth. 68
PartiesFrank MEDEN, Petitioner, v. WORKMEN'S COMPENSATION APPEAL BOARD (BETHENERGY MINES, INC.), Respondent.
Decision Date11 April 1995
CourtCommonwealth Court of Pennsylvania

Daniel G. Walter, for petitioner.

John J. Bagnato, for respondent.

Before CRAIG, President Judge, and DOYLE, McGINLEY, PELLEGRINI, FRIEDMAN, KELLEY and NEWMAN, JJ.

DOYLE, Judge.

Frank Meden (Claimant) appeals from an order of the Workmen's Compensation Appeal Board which affirmed an order of a referee denying him total disability benefits.

Claimant worked in the coal mines for thirty-three years, until his last day of work in 1979. Thereafter, he petitioned for total disability benefits under Section 306(a) of the Worker's Compensation Act (Act). 1 A referee determined that Claimant suffered from coal workers' pneumoconiosis but that Claimant was only partially disabled by that disease. By order dated August 11, 1982, the referee awarded Claimant partial disability benefits at the rate of $227.00 per week with benefits commencing on February 24, 1981 and continuing for 500 weeks. 2 The parties stipulated that jobs were available to Claimant within his physical limitations which would pay a wage of $134.00 per week. Claimant's 500 weeks of partial disability benefits were exhausted on September 24, 1990.

On April 8, 1991 Claimant filed a petition for reinstatement of total disability benefits. 3 Before the referee, Claimant argued that he was entitled to total disability benefits, because he had suffered a deterioration in his physical condition since the time of his prior award for partial disability. In support of that argument, he presented the testimony of Dr. Gordon A. Gress who testified that Claimant's pulmonary condition resulting from coal workers' pneumoconiosis had deteriorated. Although he stated on direct examination that Claimant was "totally disabled," on cross examination he admitted that Claimant was only "partially disabled" from his pulmonary condition alone, but that the addition of other non-work related conditions (a cardiac murmur and arrhythmia), caused greater physical limitations. Dr. Gress also testified that Claimant could perform sedentary work in a dust free environment.

Employer also presented medical testimony. Employer's doctor disputed most of Claimant's medical testimony, but admitted that Claimant did have complicated pneumoconiosis and that he would not recommend that Claimant return to the coal mines.

After reviewing the above testimony the referee found that:

Based on the evidence submitted, I accept the opinions of Dr. Gress relative to partial disability present based on his pulmonary condition, coal workers' pneumoconiosis, and the opinion of [Employer's doctor] that the Claimant is unable to return to work in the coal mines due to the potential progression beyond the present complicated stage existing. Dr. Gress' opinion of a worsening is accepted, but his opinion on disability is tantamount to partial disability.

Finding of Fact No. 12. Accordingly, the referee denied Claimant's petition for reinstatement of total disability benefits. On appeal to the Board, Claimant did not dispute any of the referee's findings of fact, but challenged the referee's legal conclusions, contending that merely upon a showing that his physical condition worsened, the burden shifted to Employer to demonstrate work availability as a matter of law. The Board, however, concluded that Claimant had only reestablished partial disability, not total disability, and since his eligibility for partial disability benefits had expired, the Board held that the referee properly denied his petition. This appeal followed.

Claimant raises only one issue for our review: "Whether a finding that a claimant's work related pulmonary condition has worsened constitutes a finding of increased disability such that the burden must shift to the employer to establish work availability." 4 Claimant correctly argues that "disability" for the purposes of the Act means a "loss of earning power." However, Claimant further contends that the mere worsening of his medical condition automatically translates into an increased loss of earning power. Clearly, that is not the law.

The Supreme Court recently analyzed the relationship between physical condition and disability under the Act:

It also appears that 'change in physical condition' gained heightened importance as a factor in the movant's burden of proof [for modification], to the extent of becoming a separate 'requirement', as result of application of a flawed conception of 'disability' under the Act. As we emphasized in Kachinski [v. Workmen's Compensation Appeal Board (Vepco Construction Co.), 516 Pa. 240, 532 A.2d 374 (1987) ], going back to early cases interpreting the Act 'we determine the degree of a worker's disability by reference to how the injury affected his earning power.' 516 Pa. at 248, 532 A.2d at 378, citing Woodward v. Pittsburgh Engineering and Construction Co., 293 Pa. 338, 143 A. 21 (1928) ('The disability contemplated by the act is the loss, total or partial, of the earning power from the injury.') See also Unora v. Glen Alden Coal Co., 377 Pa. 7, 104 A.2d 104 (1954) ('In the interpretation of the Workmen's Compensation Act ... the word 'disability' is to be regarded as synonymous with 'loss of earning power'.'); Petrone v. Moffatt Coal Co., 427 Pa. 5, 233 A.2d 891 (1967); Barrett v. Otis Elevator Co. 431 Pa. 446, 246 A.2d 668 (1968).

To the extent that cases ... recognized disability (in the physical sense) as an element distinct from loss of earning power, they deviated from proper interpretation of the Act. Inasmuch as both capacity to work and availability of work affect the extent of an injured employee's disability (loss of earning power), it follows that disability, for compensation purposes, may change from partial to total or vice versa on a change in one with or without a change in the other.

Dillon v. Workmen's Compensation Appeal Board (Greenwich Collieries), 536 Pa. 490, 501, 640 A.2d 386, 391-92 (1994) (emphasis in original). Thus, simply arguing that a claimant's physical condition has changed without presenting evidence of its effect on his ability to work at his light duty job cannot satisfy a claimant's burden of proof. Volk v. Workmen's Compensation Appeal Board (Consolidation Coal Co.), 167 Pa.Commonwealth Ct. 75, 647 A.2d 624 (1994). Hence, a claimant who has exhausted his or her partial disability benefits and seeks benefits for total disability, has the burden of proving that his or her disability, that is, loss of earning power, has increased, Kunicki v. Workmen's Compensation Appeal Board, 56 Pa.Commonwealth Ct. 72, 423 A.2d 1368 (1981), not just that his or her medical condition has worsened.

In the instant case, Claimant had been previously awarded partial disability benefits for coal workers' pneumoconiosis, which established that, at the time of the award, August 11, 1982, Claimant could not perform his regular employment in the coal mines. It also established that Claimant could be gainfully employed "topside" in some other employment which would enable him to earn less than his time of injury wage. 5

In this case, Claimant who was 73 years of age when he filed his petition to reinstate, had exhausted his partial disability benefits when he filed his petition for total disability benefits asserting that his medical condition had become worse. While Claimant proved that his medical...

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