531 A.2d 883 | Pa. Commw. Ct. | 1987
Opinion by
James Skurkey (petitioner) petitions for review of an order of the Workmens Compensation Appeal Board (Board) which affirmed a referees decision granting benefits for the periods from April 9 to May 9, 1980 and from October 10 to November 26, 1980.
The petitioner has had a long history of both work and non-work-related injuries. He is, however, now challenging only the referees and the Boards conclusion
The petitioner, while working for the Foster-Wheeler Corporation (employer) suffered a work-related ankle injury, from which he was temporarily totally disabled as of October 10, 1980. One of his treating physicians, Dr. Gunderson, thereafter released him to return to work on November 26, 1980. The petitioner, however, contends that, when he attempted to return to work, the employers physician, Dr. Smith, would not let him work because of the possibility of continuing ankle problems. He did not, in fact, return to work until April 5, 1983. The referee, however, concluded that all disability had ceased as of November 26, 1980, and granted benefits for the period from October 10, 1980 to November 26, 1980. The Board affirmed and this appeal followed.
In this unique workmens compensation case, the petitioner is not challenging the referees finding that all disability had ceased as of November 26, 1980. Rather, he contends that, where the employers physician refused to allow him to return to work because of a continuing disability, the Board erred in denying benefits on the basis that he should have returned on the date his treating physician said he was able to do so.
Preliminarily, we note that a company physician is, under certain circumstances, an agent of the employer, so that the employer is bound by the actions of its physician. Reed v. Glidden Company, 13 Pa. Commonwealth
The referee, as here affirmed by the Board, found that the petitioner was disabled as a result of a work-related injury from October 10, 1980 to November 26, 1980, and concluded that the petitioner was able to return to work as of November 26, 1980. And, although
With regard to the above-mentioned questions, we note that the referee, in his finding of fact No. 8, pertinently found that:
The [petitioner] recently returned to work on April 5, 1983, but testified that he attempted to return in June of 1981. However, according to the [petitioner], the defendant would not let him return to work because of continuing problems with his ankle. He also testified that he was capable of returning to work with the defendant if they [sic] would give him his old job back.3
Where, as here, the Board took no additional evidence, the referee was the ultimate fact-finder, and the Board could make no additional findings. Rettinger v. Workmen's Compensation Appeal Board (American Can Co.), 103 Pa. Commonwealth Ct. 595, 520 A.2d 1252 (1987).
We believe, therefore, that the Board erred in finding that the petitioner was prohibited from working by the employers physician without taking new evidence. And, inasmuch as the referee made no findings on necessary issues, we will remand this matter to the Board for proceedings consistent with this opinion.
Order
And Now, this 5th day of October, 1987, the order of the Workmens Compensation Appeal Board in the above-captioned matter is vacated, and this matter is remanded for findings as to whether or not the employers physician prohibited the petitioner from returning to work in January 1981, and whether or not the employer is estopped from arguing that the petitioner should have returned to work on November 26, 1980.
Jurisdiction relinquished.
Our scope of review of a Board order, of course, is limited to determining whether or not constitutional rights were violated, an error of law was committed, or a necessary finding is unsupported by substantial evidence. Glinka v. Workmen's Compensation Appeal Board (Sears, Roebuck and Co.), 104 Pa. Commonwealth Ct. 175, 521 A.2d 503 (1987).
Equitable estoppel is a doctrine that prevents one from doing an act differently than the manner in which another was induced by words and actions to expect. Novelty Knitting Mills, Inc. v. Siskind, 500 Pa. 432, 457 A.2d 502 (1983).
Although the referee stated that the petitioner attempted to return to work in June of 1981, rather than January of 1981, we find this error to be de minimis.
Dr. Smith, the employers physician-agent pertinently testified on direct examination that:
Q. Doctor, the Claimant James Skurkey testified that in November of 1980 he appeared at your office at the plant in Mountaintop for the purpose of returning to work, at which time you advised him he would not be permitted to return to work because of his ankle. I ask whether or not you have your records with you and whether or not you recall having seen the Claimant James Skurkey at or about that time?
A. Well, the thing they have is January 6, 1980 [sic].
Q. January 6 of 1980 [sic].
A. January 6, 1980 [sic].
Q. And did you see him after that date at all?
A. That’s the last note I have here.
Q. And when you saw him on January 6 of 1980 [sic], what history did you have in your records?
A. That I 1 can’t okay him for work until I check with two different groups of orthopedic surgeons who were treating him.’
Dr. Smith pertinently testified on cross-examination that:
Q. Doctor, on January 6 of 1981 at the time that you met with Mr. Skurkey, did you have an opinion at that time that the man was or was not disabled?
A. Only from the record. I certainly had—I was of the opinion that the possibility of disability existed and I determined that since the possibility of disability existed, I would find out from the proper people whether or not it did exist before allowing him to return to work.
The petitioner does not challenge the referees conclusion that Dr. Gunderson was more credible that Dr. Smith on the issue of disability. Dr. Gunderson, however, neither did testify nor could testify to the necessary issues concerning whether or not Dr. Smith, as the employers agent, prohibited the petitioner from returning to work on January 6, 1981.
