August 27, 1976
WORKMEN'S COMPENSATION APPEAL BOARD OF THE COMMONWEALTH OF PENNSYLVANIA AND DAVIDSON TRANSFER & STORAGE CO.
SANTO LEVY, APPELLANT
No. 1129 C.D. 1975
Before Honorable Harry A. Kramer, Judge, Honorable Roy Wilkinson, Jr., Judge, Honorable Genevieve Blatt, Judge
This is an appeal by Santo Levy from an order of the Workmen's Compensation Appeal Board, dated July 23, 1975, which affirmed a referee's adjudication. Levy raises five issues, which we will consider separately below. We will remand.
On October 28, 1968, Levy suffered a severe fracture of his right leg while unloading cargo. On November 8, 1968, he entered into a compensation agreement with his employer which called for maximum total disability benefits of $60.00 per week based on an average weekly wage of $179.42. Approximately twenty months later, on June 29, 1970, Levy had recovered sufficiently to permit him to perform some types of work and, accordingly, he executed a supplemental agreement calling for maximum partial disability benefits of $45 per week.
On July 6, 1971, Levy found employment as a truck driver at wages in excess of his original average weekly wage. The parties then stipulated that the benefits should be suspended in light of this fact. This stipulation was approved and reflected in a referee's order dated June 19, 1972.
On December 14, 1972, Levy was admitted to a hospital for treatment of a urological ailment not related to his leg injury. He remained hospitalized until January 15, 1973, and, because of this period of inactivity, Levy suffered a recurrence of total disability from his leg condition. The parties disagree on the question of precisely how long this second period of total disability lasted, and the referee found that the aggravation "cleared up in no more than nine weeks". After an additional six weeks of total disability not related to the leg injury,*fn1 Levy resumed his job as a truck driver on May 1, 1973, again at wages in excess of his original average weekly wage.
On July 14, 1973, Levy was laid off. He did not resume full employment until July 1, 1974, although during the one year of unemployment he worked part-time for approximately six weeks. During his unemployment Levy was entitled to, and received, unemployment compensation benefits. On July 1, 1974, Levy obtained a clerical position suitable to a man with his type of partial disability, at a wage of $161 per week. He continues in this job, earning wages which entitle him to partial disability benefits of $12 per week.
Levy began the instant case by filing a Petition for Modification seeking total disability benefits for the periods from January 15, 1973 to April 30, 1973 and from July 14, 1973 to July 1, 1974. He also asked for partial disability benefits for the period from May 1, 1973 to July 7, 1973, and from July 1, 1974 into the future. Although he received a referee's award, Levy was dissatisified in five particulars. After the Board affirmed the referee in all respects, Levy appealed to this Court.*fn2
I. ATTORNEY'S FEES
Levy filed a Bill of Costs which requested, inter alia, attorney's fees. This request was denied by the Board under the theory that the 1972 amendment to Section 440 of the Workmen's Compensation Act, Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 996, related to a matter of substance rather than procedure and is therefore not applicable to cases involving injuries occurring prior to the effective date of the amendment. We have recently dealt with an identical question in Workmen's Compensation Appeal Board v. Denny,... Pa. Commonwealth Ct. ... , 360 A.2d 306 (1976), where we held that the new provisions of Section 440 are to be treated as matters of procedure. The reasoning in Denny is applicable to the instant case, as is the necessity we found in Denny to remand the matter to determine (1) whether a reasonable basis for the employer's contest existed and (2) what reasonable attorney's fees would be. For the purpose of the remand, we also note the potential relevance of those portions of Section 440 which refer to costs for witnesses and medical examinations.
II. MEDICAL COSTS
Levy also was denied payment of the following medical expenses:
1. Services of Dr. John J. Joyce for the period
March 3, 1970 - February 11, 1974 $225.00
2. Germantown Hospital (X-rays) 47.50
3. Medical Report (Dr. Joyce) 25.00
Both the referee and the Board denied these items because they had accrued beyond the twelve-month period provided for in Section 306(f) of the Act, 77 P.S. § 531,*fn3 and because Levy had neither applied for the employer's approval prior to rendition, nor petitioned the Board for authorization as provided in the Act. Levy argues that because the employer actually paid some medical costs, for which it may not have been liable, the employer is estopped from contesting Levy's requests.We have found no authority for such a theory and there is decisional law clearly holding that in such circumstances medical costs are properly denied. Lerner v. Workmen's Compensation Appeal Board, 14 Pa. Commonwealth Ct. 561, 332 A.2d 779 (1974) and Pickens v. State Workmen's Insurance Fund, 140 Pa. Superior Ct. 258, 13 A.2d 896 (1940).
Because of our holding in Section I of this opinion with respect to the applicability of Section 440 of the Act, on remand the Board will be directed to consider each item of medical and witness costs submitted by Levy in light of that section and our opinion in Denny, supra. The reconsideration, however, should be confined to the provisions of Section 440.
III. PARTIAL DISABILITY FOR THE PERIOD JULY 7, 1973 - JULY 1, 1974.
The referee awarded Levy partial, rather than total, disability benefits for the period from July 7, 1973 to July 1, 1974. Levy argues that the referee and the Board based this portion of the award solely on the fact that Levy was receiving unemployment compensation benefits (which implies that he was available for work and, therefore, at least partially able to work). The Board did emphasize the unemployment benefits in its discussion, and we agree with Levy that if the sole basis in the record for a finding of partial disability was the receipt of unemployment benefits, the Board would have committed error, since "total disability" may be generic to the particular job a claimant performed prior to his work-related injury. Ziemba v. Unemployment Compensation Board of Review, 16 Pa. Commonwealth Ct. 615, 330 A.2d 566 (1975) and Whitehead v. Casey Building Wreckers, Inc., 6 Pa. Commonwealth Ct. 256, 294 A.2d 215 (1972). Levy also correctly points out the holding in Barrett v. Otis Elevator Company, 431 Pa. 446, 246 A.2d 668 (1968) that once a claimant has proven that he is unable to do the type of work he was engaged in when he was injured, the employer has the burden of proving that other work is available which the claimant is capable of obtaining.
Unfortunately, there are four matters of record supporting a finding of partial, rather than total disability. First, the receipt of unemployment benefits, while not sufficient in itself to support such a finding, is certainly relevant. Second, during portions of six of the weeks in question, Levy actually worked as a truck driver. Third, Levy's own agreement of June 29, 1970, acknowledged only partial disability. Although the hospitalization caused a recurrence of the original total disability, by May 1, 1973, he was again fully employed as a truck driver. The record clearly shows that on July 7, 1973 Levy was laid off. There is no evidence that his condition had deteriorated to the point of total disability as of this date, since the layoff is attributable to economic reasons. Finally, the medical evidence, although not clear, also lends support to the referee's finding of only partial disability for that period.
The Board's order with respect to the period in question is free from error.
IV. COMPUTATION OF BENEFITS FOR THE PERIOD MAY 1, 1973 - JULY 14, 1973
From May 1, 1973 until July 14, 1973,*fn4 Levy was employed as a truck driver. The referee and the Board found that during this period, on the average, Levy's earnings exceeded the original average weekly wage of $179.42 and, therefore, all benefits were denied for this period. Levy complains that this was the result of a computational error.
By a letter from the employer's counsel dated August 16, 1974, the parties stipulated that the following represents the amounts earned by Levy during the period in question:
Week Ending*fn5 Amount
May 4 $240.40
May 11 127.71
May 18 135.98
May 26 238.15
June 2 96.16
June 9 48.08
June 16 0.00
June 22 306.88
June 30 0.00
July 7 270.45
July 14 270.45
Levy argues that the average weekly wage is $1,734.26 divided by eleven weeks, or $157.26. The employer uses a divisor of 9.25 weeks and obtains a figure over $179.42. The referee used a divisor of 9-4/7*fn6 weeks, and also obtained a figure in excess of $179.42. Obviously, the divisor used by each party is the critical difference. It is apparent that the referee did not consider the weeks ending June 16, 1973 and June 30, 1973 in determining the proper divisor. The 4/7 fraction was obtained by considering the four days that elapsed from May 1, 1973 until the end of the pay period on May 4, 1973.
The stipulation submitted to the referee was in the form of a photostatic copy of Levy's payroll records. These materials contain the employer's notation "Did Not Work" for the weeks ending June 16, 1973 and June 30, 1973. The record does not explain why Levy did not work during these two weeks and the referee has made no finding of fact on which we can base a determination of the correct divisor. We acknowledge that there may be a legal question raised by facts such as these in the context of the suspension agreement*fn7 entered into originally by the parties. We decline to speculate on how such a question might be resolved absent an evidentiary hearing and finding regarding the meaning of the notation which appears on the employer's records. We also note that the parties have not addressed themselves specifically to the question of the proper divisor. They shall have that opportunity on remand.
V. BENEFITS FOR THE PERIOD JANUARY 15, 1973 - APRIL 30, 1973
As pointed out in the factual recitation at the beginning of this opinion, Levy was totally disabled from January 15, 1973 to April 1, 1973. The referee's finding relative to this period reads as follows:
"Claimant's stay in the hospital and the resultant inactivity of his right knee caused a recurrence of his total disability, which persisted through April 30, 1973, a period of 15 weeks. However, competent medical evidence has established that the further disability to Claimant's right leg caused by this hospitalization cleared up in no more than nine weeks, and that his further disability of six additional weeks was caused by other conditions which were not work-related."
Accordingly, Levy was awarded total disability benefits for a period of nine weeks beginning January 15, 1973. The award gave Levy nothing for the balance of the fifteen-week period of disability. Levy argues that (1) the bifurcation of the fifteen-week period into nine compensable weeks and six non-compensable weeks is unsupported by medical evidence, and (2) even if the bifurcation is proper, he should have been awarded partial benefits since he could not and did not actually work during the final six weeks.
The record indicates that both of the physicians who testified were imprecise about the length of the disability which was caused by the inactivity of Levy's leg. The opinions covered a range of from one month (employer's version) to two-to-three months (claimant's version). Even looking solely at Levy's medical evidence, we cannot conclude that a finding of nine weeks is unsupported by the record. The Board's affirmance of the referee's award of nine weeks of total disability was proper.
With respect to the six weeks immediately preceeding April 30, 1973, the referee's order "suspended" compensation.*fn8 It is uncontroverted that Levy was unable to work during this period, and the record indicates that he did not earn any wages during these six weeks. Although we are tempted to resolve Levy's contention that he is entitled to partial disability benefits for this period, in light of the necessity for remand on other grounds, we believe the wisest course is to direct that Levy's argument on this point be dealt with explicitly by the compensation authorities who approved the initial agreement suspending benefits.
In light of the above, we
AND NOW, this 27th day of August, 1976, the order of the Workmen's Compensation Appeal Board in the above-captioned matter, dated July 23, 1975, is affirmed insofar as it is consistent with the opinion filed herewith. Specifically, all of the paragraphs of the referee's order in the above-captioned matter, dated December 3, 1974, and affirmed by the Workmen's Compensation Appeal Board, are affirmed except paragraphs (b), (c) and (g). These three paragraphs are reversed and this matter is remanded to the Workmen's Compensation Appeal Board for the following purposes:
1. With respect to paragraph (b), to specifically address the claimant's contention that he is entitled to partial disability benefits for the six-week period immediately preceding April 30, 1973;
2. With respect to paragraph (c), to specifically resolve the question of the proper divisor to be utilized in determining whether the claimant's earnings for the period from May 1, 1973 to July 14, 1973 exceeded an average figure of $179.42 per week, said resolution to specifically consider the factual basis for the lack of any earnings for the weeks ending June 16, 1973 and June 30, 1973 and to reflect the discussion in Section IV of the opinion filed here-with;
3. With respect to paragraph (g), to determine whether attorney's fees, medical and other costs should be awarded under Section 440 of the Workmen's Compensation Act, Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 996, in accordance with the opinion filed here-with.
Additional evidence may be taken in the discretion of the Workmen's Compensation Appeal Board.
Harry A. Kramer, Judge