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JOHN B. KELLY COMPANY v. DAVIS (04/17/73)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: April 17, 1973.

JOHN B. KELLY COMPANY, INC., ET AL.
v.
DAVIS, ET AL.

Appeal from the Order of the Workmen's Compensation Appeal Board in case of Sam Davis v. John B. Kelly Company, Inc. and Employers' Liability Insurance Group, Insurance Carrier, No. A-64796.

COUNSEL

David L. Pennington, with him Harvey, Pennington, Herting & Renneisen, Ltd., for appellants.

David Gold, for appellee.

Judges Crumlish, Jr., Mencer and Rogers, sitting as a panel of three. Opinion by Judge Crumlish, Jr.

Author: Crumlish

[ 8 Pa. Commw. Page 590]

This is an appeal from a decision of the Workmen's Compensation Appeal Board granting benefits to the claimant- appellee.

On June 2, 1961 claimant Sam Davis injured his back at his place of employment, John B. Kelly Co., Inc. A hearing was held before a referee appointed by the Workmen's Compensation Appeal Board and an

[ 8 Pa. Commw. Page 591]

    award for total permanent disability was made in favor of the claimant.

On September 12, 1969, the employer filed a Petition to Terminate*fn1 alleging (1) that the claimant had returned to employment on May 22, 1969; (2) that the claimant was no longer totally disabled, and (3) that the employer was entitled to a suspension of payments.

A hearing was held on the employer's petition on June 1, 1971. After viewing motion pictures taken of the claimant by the employer and receiving other testimony, the referee concluded that the claimant's disability had changed from total to partial. The referee ordered payment of maximum partial disability benefits to the claimant as of May 22, 1969.

The claimant appealed the referee's decision to the Workmen's Compensation Appeal Board (Board) which, after a hearing, reversed the referee's determination that the claimant's disability had changed from total to partial.

The employer has appealed the Board's decision to this Court.

The appellant-employer contends (1) that the Board erred as a matter of law in its determination that the appellant-employer failed to produce sufficient and competent evidence to support the referee's finding that the claimant's physical condition changed from total to partial disability, and (2) that the Board capriciously disregarded competent evidence by its failure to review all the documentary evidence presented by the appellant-employer before the referee when the opportunity to review said evidence was provided by the appellant-employer.

We disagree with the contentions of the appellant and affirm the decision of the Board.

[ 8 Pa. Commw. Page 592]

This Court's scope of review in a workmen's compensation case is limited. Where the decision of the Workmen's Compensation Appeal Board is adverse to the party having the burden of proof, the scope of appellate review is limited to a determination as to whether the findings of the Board are consistent with each other and with its conclusions of law and its order can be sustained without a capricious disregard of competent evidence. Pellegrino v. Baldwin-Lima-Hamilton Corporation, 5 Pa. Commonwealth Ct. 150, 289 A.2d 531 (1972).

The appellant's main contention is that the Board erred as a matter of law in determining that the appellant did not produce sufficient and competent evidence to justify the referee's finding that the claimant's disability changed from total to partial in nature.

An employer petitioning for authority to terminate workmen's compensation payments has the burden of proving that the claimant is no longer entitled to such payments. See Pellegrino v. Baldwin-Lima-Hamilton Corporation, supra; Lackman v. F.W. Woolworth, 205 Pa. Superior Ct. 129, 208 A.2d 23 (1965).

The bulk of the evidence offered by the appellant to sustain his burden of proof consisted of films taken of the claimant by private investigators. The weight to be given these films is the real issue in dispute.

Motion pictures which are properly identified and authenticated are admissible as evidence for the purpose of establishing facts. DeBattiste v. Anthony Laudadio and Son, et al., 167 Pa. Superior Ct. 38, 74 A.2d 784 (1950); Commonwealth v. Roller, 100 Pa. Superior Ct. 125 (1930).

However, it is clear that films alone are inadequate to sustain appellant's burden of showing a reduction of claimant's disability from total to partial.

The record is devoid of any testimony by the appellant that there is work available for the claimant in

[ 8 Pa. Commw. Page 593]

    light of his age, sixty-one years, his second grade education, and his disability. Such is the requirement placed on the appellant by Petrone v. Moffat Coal Company, 427 Pa. 5, 233 A.2d 891 (1967).

The films produced by the appellant have questionable value. In DeBattiste, supra, a case particularly relevant to the problem at hand, the Superior Court of Pennsylvania aptly pointed out the questions left unanswered by motion pictures. The Court said, "The pictures show claimant's activity for very limited periods of time. Was claimant then working faster or slower than before the accident? The pictures cannot accurately measure his speed, energy and efficency at work; they do not constitute an infallible measure of either disability or earning power." 167 Pa. Superior Ct. at 43, 74 A.2d at 787.

It must also be remembered that films taken of one party to a lawsuit by the other party are necessarily suspect. The pictures must be carefully scrutinized because of the ease with which true films can be altered and distorted into frames of damaging fabrications.*fn2

The films presented by the appellant in this case show the claimant "working" at a gas station. The pictures merely show the claimant pumping gas and in one sequence, working over a tire.*fn3 The length of the films showing any work by the claimant is minuscule in light of the fact that he was under surveillance from 1966 until 1969.

The claimant testified that he had worked at the gas station, on a part-time basis, for a period of about

[ 8 Pa. Commw. Page 594]

    two weeks, but had to quit under doctor's orders because such work caused him extreme pain.

Under the circumstances, the Board did not capriciously disregard evidence in determining that the referee placed too much weight on the films and that the appellant has not sustained its burden of proving a change from total to partial disability.

The appellant also contends that the Board capriciously disregarded competent evidence by its failure to review the motion pictures presented by the appellant.

This contention has been disposed of in our discussion of the burden placed on the party who seeks to have a disability changed from total to partial. Films showing the claimant shuffling around a gas station, occasionally pumping gas, do not sustain the burden of the appellant. Since the appellant offered no medical testimony to show a feigning of injury or the required evidence of work available which suited the mental and physical capabilities of the claimant, Petrone, supra, a substantial and necessary element of appellant's burden in this petition to terminate was not sustained.

We must point out that this Court does not approve of the Board's refusal to view the films. Our decision to affirm results from the fact that the Board had the benefit of a running narration of the films by the appellant's investigation on the record. From this, some review of the films though limited could be afforded.

However, the factor that must be again emphasized is that the films alone are not sufficient to sustain the appellant's burden. A viewing of the films by the Board could not have changed that and remand by this Court for that purpose would be futile.

Order

And Now, this 17th day of April, 1973, the order of the Workmen's Compensation Appeal Board is hereby affirmed. Accordingly, judgment is entered in favor

[ 8 Pa. Commw. Page 595]

    of the claimant, Sam Davis, and against John B. Kelly Company, Inc., for compensation at the rate of $42.50 resuming on May 22, 1969, together with interest at the rate of six percent per annum on deferred installments from the date due to the date paid, and continuing for an indefinite period, all within the terms and limits of the Pennsylvania Workmen's Compensation Act.

Disposition

Affirmed.


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