Opinion by
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 apрroved 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 Wоrkmen’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 оf 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. Thе 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 emplоyer’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 *17 before the referee. The impartial medical exрert, 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, сlaimant’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: “The referee terminated compensation, predicated largely upon the acceptance of thе testimony of the impartial expert, which testimony we find, upon examination, fully supports the referee’s findings. As a general rule, the testimony of such an expert is accorded greater consideration than that given to the conclusions expressed by witnesses called on behalf of either party in interest for the reason that such witness is presumed to be unbiased and without personal interest m the effect his testimony will have in the ultimate result ” (Italics supplied.)
The court below, on appeal, held that there was ample testimony to support the board’s findings, but felt required tо 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 returnеd to the board.
*18
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 thе 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 striсt rules of pleading and practice applicable to common law actions do not apply. The courts take a liberal attitude toward the pleadings in compеnsation cases and consider the substance of the relief prayed for rather than its form. Virtue
v. J. Lee Plummer, Inc., et al.,
Of course, the parties are entitled to know the issue in any particular procеeding 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 sеnse. 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.,
The employer’s petition was captioned a “Petition for Termination or Modification” of agreement or award. After the impartial expert had given his opinion that claimant’s disability had cоmpletely and fully terminated, claimant’s counsel was entirely cognizant of the issue. Counsel for claimant requested and was given an opportunity to produce rebuttal testimony; the hearing was adjourned and rebuttal testimony introduced by calling Dr. Levinthal.
*19 It seems to us that counsel for the employer should have requested leave to amend the petition to include tеrmination. Such amendment may be made when the case is returned to the board if granting the amendment will not prejudice claimant’s case. As a matter of fact, claimant had the opportunity to, and did, present rebuttal testimony on that issue. Consequently, under the circumstances, a matter of pleading, in itself, should not prevent termination by the board.
But there is another reаson which prompts us to remit the record to the board for further hearing and determination. The board apparently felt that the testimony of the impartial medical expert aрpointed by it was entitled to greater weight than that of any other expert. In this respect the board said: “As a general rule, the testimony of such an expert is accorded greater consideration than that given to the conclusions expressed by witnesses called on behalf of either party in interest for the reason that such witness is presumed to be unbiased and withоut personal interest in the effect his testimony will have in the ultimate result.” We think this is a mistaken and erroneous view of the law. The board is not bound to believe the testimony of the impartial expert, appointed by it, simply because of his position. His testimony is not ipso facto entitled to any greater weight than that of any other duly qualified expert. Certainly no “general rule” can be laid down as the basis for accepting or rejecting the testimony of an impartial expert. His impartiality, or lack of it, is a matter to be considered by the finder of the facts, along with many other factors which may affect credibility. And it may well be that after considering all these factors in a particular case, the fact-finding body may believe the impartiаl expert to the exclusion of all others. A statement, however, that generally his position entitled his testimony to greater weight is a clear error of law. Our cases so indicate.
In
Ciello v. D. J. Kennedy Co. et al.,
131 Pa. Superior
*20
Ct. 492,
In
Wallace v. Allen,
Again in
Johnson v. Valvoline Oil Co.,
The order of the court below is reversed; the record is remitted to the court below with direction to return it to the board for further proceedings not inconsistent with this opinion.