15 Pa. Commw. 518 | Pa. Commw. Ct. | 1974
Opinion by
On March 2,1971, Anthony Naponic (Naponic) and Irwin Sensenich Corporation and its insurance carrier, Pennsylvania Manufacturers’ Association Insurance Company (hereinafter collectively referred to as “Appellant”), entered into a supplemental compensation agreement for total disability arising from an accident Naponic sustained in the regular course of Ms employment on March 3, 1967. Appellant filed a petition to modify tMs agreement on April 17, 1972 alleging a resolution of NapoMc’s disability to a specific loss of the use of Ms lower right leg, and thus witMn the compensation schedule of Section 306(c) of the Pennsylvania. Workmen’s Compensation Act, Act of June 2, 1915, P. L. 736, as amended, 77 P.S. §513. The effect of tMs petition to modify in reality was to terminate compensation because Appellant has already paid Naponic compensation in excess of that which is provided by Section 306(c) for a specific loss, and Appellant claims a credit for over-payment. Following a hearing where the only witness was Appellant’s medical expert, the referee dismissed the petition to modify determining that Appellant had not carried its burden in establishing a specific loss. The Workmen’s Compensation Appeal Board affirmed (Chairman Culbertson dissenting), and this appeal followed. We affirm.
In considering the merits of an employer’s petition to modify, the burden is on the employer to prove that the claimant’s disability has ceased to be total. Aluminum Company of America v. Theis, 11 Pa. Commonwealth Ct. 587, 314 A. 2d 893 (1974); Borough of Catawissa v. Shultz, 9 Pa. Commonwealth Ct. 546, 308 A. 2d 633 (1973). “’The party seeking to modify a compensation agreement has the burden of establishing the allegations upon which he relies. Where, as here, the decision of the [compensation authorities] is against the party having the burden of proof, the question on ap
Although the only testimony came from Appellant’s medical expert who was of the opinion that Naponic’s injury was limited to his lower right leg, a careful review of the record indicates that the referee did not capriciously disregard this evidence in determining that Naponic had not suffered a specific loss. When asked whether Naponic had suffered a loss of the use of his lower right extremity for all practical intents and purposes, Dr. Gerald W. Pifer, testifying on behalf of Appellant, answered: “Yes, with a qualification for Ms particular occupation.” This qualified answer was further explored upon cross-examination: “Q. Doctor, let’s talk about that qualified yes. You say that he has lost the use of his leg for all practical intents and purposes as far as his occupation is concerned, is that what you mean? A. Yes. Q. But for any other usage and walking around and standing he still has the use of his leg, doesn’t he? A. Yes, for ambulation as long as he uses— as I understand it, he uses a cane routinely. He needs help. Q. You wouldn’t say, would you, that he has lost the use of his lower right leg for all practical intents and purposes . . . ? A. No, that is why I qualified it for his occupation and as a machinist.” It is axiomatic
Appellant further contends that since the only evidence proffered indicated that Naponic’s injury was limited to his lower right leg, the referee and Board erred in failing to follow Groncki v. Allegheny Pittsburgh Coal Company, 204 Pa. Superior Ct. 465, 468, 205 A. 2d 624, 626 (1964), wherein the Court held: “Where an employe has lost the use of a leg as the result of a compensable accident, he is not entitled to additional compensation for total disability under Section 306(a) of the Act unless the injury extends beyond the leg.” In Groncki, the claimant did not contend that his disability extended beyond his leg (which had been amputated), whereas here Naponic alleges — and Appellant’s medical expert agrees — that his total occupational disability continues. Groncki was further distinguished by Judge Wilkinson in Van Horn v. Workmen’s Compensation Appeal Board, 12 Pa. Commonwealth Ct. 473, 476, 477, 316 A. 2d 686, 688 (1974), which is factually identical, wherein, in speaking for
“While at first the findings of the referee and the Board may seem incongruous in that the claimant-appell[ee] was found to have not lost the use of his right leg but was found to be totally disabled, such a finding fulfills the requirements of Sections 306(a) and (c). As noted by Judge Woodside in Curran v. Walter E. Knipe and Sons, Inc., 185 Pa. Superior Ct. 540, 138 A. 2d 251 (1958), the capacity to work is involved under Section 306(a) which concerns total disability but not under Section 306(c) which concerns specific permanent injuries. ‘It is possible for one to be totally disabled by a leg injury, and still not have suffered the loss of use of the leg. It is also possible to have suffered the permanent loss of use of the leg and not be totally disabled.’ 185 Pa. Superior Ct. at 544, 138 A. 2d at 254.” (Emphasis in original.)
Consistent with the foregoing, we enter the following
Order
And Now, October 30,1974, the award of the Workmen’s Compensation Appeal Board is affirmed, and Appellant is ordered to continue to pay Anthony Naponic compensation for total disability at the rate of $52.50 per week for the indefinite future, together with legal interest on all deferred or unpaid installments, all within the limitations of the Pennsylvania Workmen’s Compensation Act.
In finding of fact No. 5, the referee referred to a letter from a Dr. William Eaton which was admitted into evidence, over objection, by Naponic to establish that he retained a functional use of his right leg, although he continued to be totally disabled. Although this letter was hearsay and did not qualify as an admissible medical deposition under Section 422, 77 P.S. §835, it was merely corroborative of Appellant’s medical expert’s testimony and therefore was properly considered by the referee and the Board on appeal. Cody v. S.K.F. Industries, Inc., 447 Pa. 558, 291 A. 2d 772 (1972).
