Eugene E. Duffy, Richard L. Zack, Hazleton, for appellants.
Feldmann & Ciotola, Louis G. Feldmann, Anthony J. Ciotola, Hazleton, for appellees.
Jones, C. J., and Eagen, O'Brien, Nix and Manderino, JJ. Roberts and Pomeroy, JJ., took no part in the consideration or decision of this case.
This appeal arises from an order of the Commonwealth Court which reversed an order of the Workmen's Compensation Appeal Board and granted appellee-employer's petition to terminate benefits.
Claimant-appellant, Joseph Bartosevich (claimant) was injured on August 21, 1967, while working for Ira Berger & Sons (appellee). The parties entered into a compensation agreement for total disability payments of $52.50 per week. On February 19, 1969, appellee filed a termination petition which alleged that claimant was able to return to work on December 1, 1968. On October 8, 1971, a referee granted the termination petition, finding that, although appellant remained disabled, his disability was not causally related to the accident of August 21, 1967. Claimant appealed and the Workmen's Compensation Appeal Board (the board) vacated the referee's findings and remanded the case for appointment of an impartial medical expert. Upon rehearing, a different referee denied the termination petition, and the board affirmed. Two impartial medical experts testified that claimant was totally disabled. The disability was due to "conversion neurosis caused by the mismanagement or improper treatment of [the claimant] by [a chiropractor], who was selected by the claimant himself." Since there was no evidence that the claimant was either malingering or acting in bad faith when he sought treatment for the initial injury, the board held that the continuation of the disability was a direct result of the initial injury.
On February 10, 1975, the Commonwealth Court reversed the board's order. Berger & Sons v. W. C. A. B., 17 Pa. Commw. 370, 332 A.2d 5 (1975). Appellant filed a petition for allowance of appeal, which this court granted on July 7, 1975.
In reviewing decisions of the board, the Commonwealth Court must follow § 44 of the Administrative Agency Law.*fn1 See 77 P.S. § 876.1. That law provides, in relevant part:
"The court to which the appeal is taken shall hear the appeal without a jury on the record certified by the agency. After hearing, the court shall affirm the adjudication unless it shall find that the same is in violation of the constitutional rights of the appellant, or is not in accordance with law, or that the provisions of sections thirty-one to thirty-five inclusive of this act . . . have been violated in the proceeding before the agency, or that any finding of fact made by the agency and necessary to support its adjudication is not supported by substantial evidence." 71 P.S. § 1710.44 (Emphasis supplied.)
The board heard testimony of Dr. Charles Umlauf, an impartial medical expert, who is board certified in both neurology and psychiatry. Dr. Umlauf testified that the claimant was totally disabled as a result of a conversion neurosis. A second impartial physician, Dr. John Whitehill, an orthopedic specialist, offered testimony that was the same as Dr. Umlauf's. Based on this testimony, the referee found that:
"The claimant suffers a total disability which is causally related to the accident which claimant suffered in the course of ...