Pieper v. Ametek-Thermox Instruments Div.

• Decision Date: 27 December 1990
• Docket Number: AMETEK-THERMOX
• Citation: 584 A.2d 301,526 Pa. 25
• Parties: Mark J. PIEPER, Appellant, v.INSTRUMENTS DIVISION, and Workmen's Compensation Appeal Board, Appellees.
• Court: Pennsylvania Supreme Court

Page 301

584 A.2d 301

526 Pa. 25

Mark J. PIEPER, Appellant, v. AMETEK-THERMOX INSTRUMENTS DIVISION, and Workmen's

Compensation Appeal Board, Appellees.

Supreme Court of Pennsylvania.

Submitted March 9, 1990.

Decided Dec. 27, 1990.

[526 Pa. 27] Louis C. Alvin, Pittsburgh, for appellant.

Lawrence J. Baldasare, Pietragallo, Bosick and Gordon, Daniel D. Harshman, for Ametek-Thermox Instruments Div.

Norman R. Haigh, Secretary, W.C.A.B., Harrisburg, for appellees.

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

OPINION

CAPPY, Justice.

The question before us is whether the Commonwealth Court committed an error of law by requiring Appellant to establish a "causal connection" between his prior work-related injury and his present disability in order to qualify for reinstatement of compensation pursuant to The Pennsylvania Workmen's Compensation Act. ¹ Because the record evidence fails to establish a termination of the liability of Appellant's employer we find that Appellant was only required, as he did, to establish that his disability "continued". We therefore reverse the decision of the Commonwealth Court.

History

This is an Appeal by Mark J. Pieper from an order of the Commonwealth Court reversing an order of the Workmen's Compensation Appeal Board ("Board") affirming a Referee's reinstatement of benefits to Pieper. On October 8, 1982, Pieper suffered a lower back injury during the course of his employment with Ametek-Thermox Instruments Division ("Ametek"). As a result of that injury, and pursuant to a notice of compensation dated December 6, 1982, Pieper was paid temporary total disability benefits for a "Herniated Disk L4 L5" until April 11, 1983, at which time he returned to work and executed a "final receipt". ² On April 22, 1983, Pieper suffered a recurrence of his injury and benefits were reinstated by "supplemental agreement". ³ On May 31, 1983, Pieper returned to work on a part-time basis and he received partial disability benefits until they were terminated by a supplemental agreement dated June 21, 1983, ⁴ which resulted from his return to full-time employment on June 20, 1983. Two days later, on June 23, 1983, Pieper was laid off, and commencing August 26, 1983, he received unemployment compensation for twenty-six weeks. ⁵

Prior to being laid off on June 23, 1983, Ametek had returned Pieper to his same job despite his inability to perform the required lifting of heavy objects, prolonged bending, stretching, reaching, and climbing of ladders. When Pieper was laid off he was still experiencing pain in his lower back and in his leg, and he continued to wear a back brace. On September 18, 1984, Pieper filed a petition for reinstatement of benefits with the Board alleging a change in his condition as of January 25, 1984.

The Referee found that Pieper was "totally and permanently disabled from doing his former job as a mechanical assembler or any similar types of work" and that Pieper's "total disability since March 9, 1984, [was] the result of the work-related injury of October , 1982." Thereafter, the Referee reinstated Pieper's compensation benefits as of March 9, 1984, subject to a credit for periods Pieper worked as a part-time bartender. In addition, the Referee held Ametek liable for all related medical expenses and bills of cost.

Ametek appealed the determination of the Referee to the Board claiming that Pieper failed to present unequivocal medical testimony to demonstrate the causal relationship between the work-related injury and his present disability. The Board concluded that the factual findings of the Referee were supported by competent evidence based upon: (1) Pieper's testimony; (2) the extensive record of agreements by the employer to pay compensation subsequent to the original injury; (3) Pieper's back operation to improve the disability caused by the injury; and (4) the testimony of Pieper's treating physician. While the Board recognized that the testimony of the physician focused upon the continuing nature of Pieper's disability rather than upon its causation, it nevertheless found that the evidence taken in its entirety was adequate to support the Referee's decision particularly where Ametek offered no medical evidence to contradict the causal relationship.

Ametek appealed the determination of the Board to the Commonwealth Court claiming: (1) Pieper failed to show a deterioration in his condition; (2) Pieper failed to show a causal connection between his work-related injury and his present disability; and (3) that the Referee and the Board erred in awarding total disability benefits to Pieper with only a credit to Ametek for part-time work performed by Pieper. The Commonwealth Court reversed the order of the Board upon a determination that the necessary finding of causation was not supported by substantial evidence. We granted Pieper's Petition for Allowance of Appeal, and we now reverse the Commonwealth Court.

DISCUSSION

Pursuant to 77 P.S. § 834, all findings of fact by any Referee or the Board shall be based upon sufficient competent evidence. On appeal, the standard of review of a Board order is limited to determining whether there has been a constitutional violation, or an error of law, or a violation of Board procedure, and whether the necessary findings of fact are supported by substantial evidence. 2 Pa.C.S.A. § 704; ⁶ Hoffman v. Com., Unemployment Board of Review, 524 Pa. 470, 574 A.2d 57 (1990); Farquhar v. Workmen's Compensation Appeal Board (Corning Glass Works), 515 Pa. 315, 528 A.2d 580 (1987); Odgers v. Unemployment Compensation Board of Review, 514 Pa. 378, 525 A.2d 359 (1987); and McGovern v. State Employees' Retirement Board, 512 Pa. 377, 517 A.2d 523 (1986).

When a claimant petitions for the reinstatement of benefits pursuant to 77 P.S. § 772, ⁷ his burden is different depending upon whether benefits have been "terminated" or "suspended". Venanzio v. Workmen's Compensation Appeal Board (Eastern Exp.), 88 Pa.Commw. 204, 489 A.2d 284 (1985), appeal denied (Pa. September 30, 1985). A termination of benefits is supported by a finding that all disability related to a compensable injury has ceased. Central Pennsylvania Community Action, Inc. v. Workmen's Compensation Appeal Board (Probeck), 103 Pa.Commw. 278, 520 A.2d 112 (1987); Unity Builders, Inc. v. Workmen's Compensation Appeal Board (Ellisor), 50 Pa.Commw. 527, 413 A.2d 40 (1980). Since the employee has recovered from his disability, the employer is no longer obligated to compensate the employee for that injury. However, a certain percentage of these claims are also settled for reasons practical and otherwise, which often results in a termination of the liability of an employer without an actual termination of the disability of the employee.

In any event, a termination of benefits must go hand-in-hand with a termination of the liability of an employer. If the claimant later petitions for reinstatement of benefits, it is incumbent upon the employer to submit the proper evidence of such termination (e.g. "final receipt" pursuant to 77 P.S. 1001 and/or "agreement" pursuant to 77 P.S. 732 or "formal award" pursuant to 77 P.S. 772). If the evidence submitted by the employer sufficiently establishes a "termination of liability", then the claimant must establish a causal connection between his current condition and the prior work-related injury in order to have benefits reinstated. Russell v. Workmen's Compensation Appeal Board ( Volkswagen of America), 121 Pa.Commw. 436, 550 A.2d 1364 (1988); D.P. "Herk" Zimmerman, Jr. Inc. v. Workmen's Compensation Appeal Board (Himes), 103 Pa.Commw. 68, 519 A.2d 1077 (1987). To meet this burden, the claimant must establish that his disability has increased or recurred after the date of the prior award, and that his physical condition has actually changed in some manner. Id.; 77 P.S. § 772; Memorial Osteopathic Hosp. v. Workmen's Compensation Appeal Board (Brandon), 77 Pa.Commw. 518, 466 A.2d 741 (1983); Harris Weinstein/Clyde Shirt Co. v. Workmen's Compensation Appeal Board, 65 Pa.Commw. 598, 443 A.2d 857 (1982).

No such causal connection must be shown in a "suspension of benefits" situation. A "suspension of benefits" is supported by a finding that the earning power of the claimant is no longer affected by his disability, whether it arises from his employer offering suitable replacement employment, or from the ability of the claimant to secure other suitable employment that provides equal or greater compensation. Should a claimant seek to have a suspension lifted, he is required to demonstrate only that the reasons for the suspension no longer exist. Simply, a claimant must show that while his disability has continued, his loss of earnings has recurred. Certainteed Corporation and Aetna Casualty & Surety Company v. Workmen's Compensation Appeal Board (Williams), 126 Pa.Commw. 311, 559 A.2d 971 (1989), appeal denied, 524 Pa. 612, 569 A.2d 1370 (1989); Baughman v. Workmen's Compensation Appeal Board (Laurel Environmental Services, Inc.), 121 Pa.Commw 627, 550 A.2d 1051 (1988), appeal denied 577 A.2d 545 (1989); Venanzio v. Workmen's Compensation Appeal Board (Eastern Exp.), 88 Pa.Commw. 204, 489 A.2d 284 (1985), appeal denied (1985); Busche v. Workmen's Compensation appeal Board (Townsend and Bottum, Inc.), 77 Pa.Commw. 469, 466 A.2d 278 (1983), appeal denied, (1984).

In such suspension situations, the causal connection between the original work-related injury and the disability which gave rise to compensation is presumed. First, it is presumed because the causal connection between the original work-related injury and disability was initially either not contested by the employer or established by competent proof by the employee at the time of the original disability claim. Second, it is presumed because with a mere suspension of benefits, there is no contention by any party that the liability of the employer has terminated....