Barna v. Workmen's Compensation Appeal Board
522 A.2d 22
Pa.
1987
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*1 our Until rules definitively require incantation of statu- tory phraseology when parties present review, issues for I find it inappropriate to insist upon such incantation. I

Because find that Superior Court properly permitted appeal Commonwealth’s and because I believe our cases,4 limited these I do not consider the merits of the case and would affirm thereby Superior Court’s remand for resentencing.

HUTCHINSON, Justice, dissenting.

I dissent. This matter is ill-suited judicial I review. would dismiss this improvidently granted and refer the issue to our Appellate Rules Committee. A.2d Sr.,

Joseph BARNA, Appellee, R. (JONES WORKMEN’S COMPENSATION APPEAL BOARD CORPORATION). & LAUGHLIN STEEL Appeal of SAFECO INSURANCE COMPANIES.

Supreme Pennsylvania. Court of

Argued Oct. Decided March Reargument 5,May Denied interpret 9781(f) permitting ruling section this Court to review a appellate an intermediate court which is an abuse of discretion authority. exceeds its I find no such abuse or excess herein. *2 for Walters, Jr., Pittsburgh, Michael D. F. Roy appellant. Harrisburg, Richard Magrann, W.C.A.B.

Thomas J. Sec. Caroselli, for appellee. R. William Spagnolli, G. FLAHERTY, LARSEN, NIX, C.J., and

Before zappala McDermott, hutchinson, PAPADAKOS, JJ. THE COURT

OPINION OF FLAHERTY, Justice. of Jones petition allowance granted L”) to as “J & (hereinafter referred Corp.1 Laughlin

& Steel our decision Beissel W.C.A.B. to determine whether J L appeal, & filed granted for allowance we Since Chapter reorganization of the federal pursuant 11 3, 1986, Code, requested this October Bankruptcy letter dated bankruptcy pro- pending of the stay this resolution Comí to matter Co. as light of Safeco Insurance ceeding. of the substitution matter, request. to rule on J & L’s appellant we decline in this 520

(John Wanamaker, Inc.), (1983) Pa. A.2d precludes termination disability payments under 77 P.S. 771, where the payments were made under a mistaken belief that cause an employee’s disability was work- related.

Appellee, Pennsylvania claimant Workmen’s Act, Compensation 2, 1915, Act of June P.L. art. amended, (hereinafter 1 et seq., P.S. referred Act”) pain “the suffered back caused an acute lumbo sacral strain after operating a mobile during crane course his employment.2 He notified his within occurrence, days a few sought and then treatment at hospitals. local Under 10, 1977, began

dated October claimant receiving biweekly disability payments commencing July $199.00 13, 1977, Dr. El Attar, L, October a physician for J & *3 requested hospital claimant’s upon records. Based that review, Dr. El Attar concluded that disability claimant’s work-related, was not but was the result of the advanced of an stage illness underlying during contracted World War El II. Dr. Attar’s conclusion further supported was by observations of claimant after the commencement of com- pensation payments, where symp- claimant exhibited new toms which were El diagnosis consistent with Dr. Attar’s and which were not claimed to be work-related.

In 1978, December J & L with department filed labor and industry review referee’s award grounded upon alleged an “change and char- nature acter of claimant’s disability.”3 support of petition, J occurrence, 2. The record is not clear to the exact date of the 18, indicating July July both 1977 and date claimant’s provides part: pertinent 3. The time, designated by may, department any modify, A referee at reinstate, suspend, compensation payable or terminate a notice of upon petition party department, upon ... filed either with the increased, proof disability injured employe of an has decreased, recurred, ceased, finally temporarily has or or or that the any dependent changed____ status has (Supp.1986). 772 P.S. prove, not that there evidence tended L offered which & nature of claimant’s but change had been not disability work- the cause of claimant’s rather and, evidence, L’s accepted The referee & related. his was unrelated to disability that claimant’s concluding disability work, terminating an order the referee entered the Board 1978.4 effective December affirmed. at provided is 77 P.S. for the referee’s award

Authority as follows: (Supp.1986) time, any may, at department A referee a notice or set aside modify or supplemental agreement^] or original and an payable department, party either with upon petition proceedings any course or in the be that such proved it referee, such pending if before agreement was in respect incorrect. any material no question can There [Emphasis supplied.] pro- which or notice of is work-related for a which vides v. W.C.A.B. materially incorrect. Wertz at its outset (1985). 496 A.2d (Ferro 90 Pa.Cmwlth.Ct. Corp.), termination bene- Court reversed Commonwealth Beissel was fits, supra. opinion our recent citing sur- who underwent compensation claimant a workmen’s and fell at slipped after she 13 months gery a bad back including pre- three reports, medical Four written work. carrier, indicated that Beis- pared for employer’s *4 her An related to fall. problems were sel’s back her employer’s Beissel and reached between accident, the carrier, employ- years after nearly two for a lower back er filed a notice of years, for almost two compensation paying After for termination benefits another testimony yet form of produced evidence challenging precluded J & L was from 4. The referee concluded that petition. its review paid prior to date of propriety of benefits physician indicating that problem’s Beissel’s back were aby “coughing caused and laughing spell” which occurred days prior to her fall. reversed the benefits, termination of Beissel’s stating: [employer] to, “Since had an opportunity did, and in fact investigate the cause of [Beissel’s] compensation payable [employer] filed constitutes admis- sion of its for compensation for a lower [Beissel] injury.” back 502 Pa. at 465 A.2d at 971. The instant case is distinguishable from Beissel because the record does L actually investigated show that J & claimant’s condi- prior tion to the notice of compensation payable. On the contrary, the record demonstrates that J & L commenced prior investigation the causes of claimant’s disability. After its investigation of claimant’s complete, condition was J & L determined that the condition thus, was never work-related and was, notice of compensation payable in the language of 771, incorrect respect. a material Commonwealth Court also based its decision upon per- if potential ceived are employers abuse repeatedly challenge the cause of a claimant’s disability. This certainly spirit observation is consistent with the our decision in where we reversed an order termi- There, nating benefits. years two pay- ments in spite commenced and of the fact the compensation opinions award was based of three of the insurer’s physicians, own the employer sought to terminate claim- ant’s disability payments yet physician when another re- opined viewed the case and that all his predecessors were wrong in their assessment of the cause claimant’s disabil- ity. Repeated litigation of the cause of a claimant’s injury and, thus, However, is wasteful to be avoided. there is no hint on guilty this record J & is of such abuse. short, ignore provision we cannot the clear terminated where it is may paid a notice of compensation materially which is incorrect. The imposes upon employers duty promptly com- *5 cause of an compensation5 and the payment menee Where, may always be obvious. employee’s disability here, promptly payment an commences employer in- completion or prior to commencement later injuries claimant’s vestigation into cause of never disability the claimant’s work-re- determines that of the lated, repeated contests absence of evidence such as occurred disability cause pro- to seek relief. This rule must be employer injured employees which is early payment motes Act preserves while it contemplated clearly an under the legitimate expectation employer’s a general not become injuries Act for work-related policy. is and the Commonwealth Court reversed The order of for of issues not is remanded to that Court record appeal. relinquish jurisdict on disposed of previously ion.6

Reversed and remanded. NIX,

LARSEN, J., dissenting opinion in which files a C.J., joins.

LARSEN, Justice, dissenting. decision This controlled our dissent. case (1983)which 465 A.2d 969 W.C.A.B., 502 Pa. provides pertinent part: 5. The injury promptly investigate each employer insurer shall promptly proceed employer reported known and shall or pursuant compensation due either commence the compensa- or a notice compensation shall payable____ The first installment tion day notice twenty-first has paid than not later disability____ employe’s knowledge of (Supp.1986). 77 P.S. 717.1 compensation benefits since has not received worker’s 6. Claimant granted request for a J & L’s when the referee November petition. After his of the review supersedeas pending resolution filed, Court, in this to Commonwealth claimant successful Court, relief, of his requesting special reinstatement disposition of this our compensation benefits. In view of worker’s matter, special is denied. relief claimant’s precludes litigation of liability where the employer has *6 admitted liability in filing a notice of compensation payable. In Beissel, we said:

Just as we have held that the burden is on petitioner a to prove that an employe’s disability has increased or decreased filing of a notice of compensation after payable, we also hold that petitioner a has the burden proving that an independent cause of an employe’s dis- ability arose filing of a notice of compensation payable if petitioner seeking to justify the termi- nation of on the grounds the employe’s longer is no work-related. To hold otherwise would afford the employer an opportunity to litigate that which it has already admitted. This we will not do. Id., p. Pa. at 465 A.2d at (Emphasis original.) The majority attempts to distinguish the instant Beissel case from by declaring that “the record does not L show that J & actually investigated claimant’s condition

prior to the of compensation notice payable.” (At page 522.) majority goes on to say “... the record demon- strates L J & commenced payment of disability bene- prior

fits to its investigation cause of claimant’s (At disability.” page 522.)

According case, to the record this the appellee was injured 18,1977.1 on job 22, 1977, while on July July On appellee reported to the J & L Health Center where he was examined Dr. the appellant’s examining physi- cian. Appellee’s injury diagnosed was as acute lumbo sa- cral strain. Appellee was told not to report for work. thereafter, home, Shortly while at the appellee’s pain back became worse and his phoned wife the J & Health Center for help. Appellee go was advised to to the nearest hospital 26, 1977, July treatment. On appellee was seen at St. Clair Memorial Hospital where he was treated an out-pa- 1, 1977, tient. August On appellee was admitted to South compensation employer's report Both the notice of and the occupational injury July injury. list 1977 as the date of Other record, part including report documents that are of Dr. Schor, appellee injured July Gerald I. state that the was on in-patient until his he treated was Hospital where Side 10, 1977, notice October August on discharge & L. appellant, issued compensation payable W.C.A.B., supra, we stated: to, in fact opportunity had an employer] Since [the did, employee’s] disability, the cause investigate [the filed constitutes an payable it compensa- employee] admission of [the employer] may tion for lower back [The guise petition, of a termination come into now, under the Murray of Dr. testimony the favorable court and use it admitted in its notice of that which precisely contradict employee’s] dis- payable, namely, [the *7 at the time the notice ability to her 1975 fall at work.

filed was related [Footnote omitted.]

Id., 183, 465 A.2d at 971-72.2 p. 502 Pa. at case, physi- appellant’s

In Dr. own present the cian, after his Fur- appellee shortly injury. examined wife, worsening a ther, when, through reported his appellee in condition, physician or another his either Dr. Sherman to seek treat- appellee health center appellant’s advised knowledge Based obtained hospital. ment a at appellant issued appellee, examination its doctor’s year one Approximately compensation payable. paid appel- later, October, 1978, voluntarily appellant in & L appellant his related to lee’s medical bills investigate to the cause complete opportunity had a full and physi- have its own and did fact appellee’s The notice appellee. cian examine appel- an admission of constitutes by appellant compensation for the acute appellee lant’s liability appellee. disabled lumbo sacral strain that sought L has not appellant J & It clear that appears has decreased terminat- prove appellee’s appellant-employer the instant It no difference that makes liability by filing petition review instead of sought litigate case employer in Beissel. as was filed a termination ed since July, 1977. Rather the appellant sought to show that appellee’s present disability, which has remained un- changed, was never work-related. We held in Beissel not employer may contradict its admission of payable previously issued. This is precisely appellant what J & has sought to do in this case. did permit we not litigate liability which had already been admitted. Like- wise, it should here. affirm would order of the Commonwealth Court.

NIX, C.J., joins this dissenting opinion.

522 A.2d 26 DeMARCO, Appellant, Leonard CORPORATION, Appellee. JONES & LAUGHLIN STEEL Supreme Pennsylvania. Court of

Argued Dec. Decided March Reargument Denied June