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PETER COSTANZO v. COMMONWEALTH PENNSYLVANIA (02/07/80)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: February 7, 1980.

PETER COSTANZO, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, WORKMEN'S COMPENSATION APPEAL BOARD, KANE HANDLE COMPANY AND LIBERTY MUTUAL INSURANCE COMPANY, INSURANCE CARRIER, RESPONDENTS

Appeal from the Order of the Workmen's Compensation Appeal Board in case of Peter Costanzo v. Kane Handle Company, No. A-74371.

COUNSEL

John M. Cleland, with him Woods, Baker & Cleland, for petitioner.

Harry K. Thomas, with him Knox, Graham, McLaughlin, Gornall and Sennett, Inc., for respondent.

Judges Wilkinson, Jr., Mencer and Rogers, sitting as a panel of three. Opinion by Judge Mencer. Judge DiSalle did not participate in the decision in this case.

Author: Mencer

[ 49 Pa. Commw. Page 250]

This is an appeal by Peter Costanzo (claimant) from an adverse decision of the Workmen's Compensation Appeal Board (Board) sustaining a referee's termination of claimant's benefits.

The claimant suffered an injury during the course of his employment with Kane Handle Company, on April 30, 1975, when he was struck in the chest by a wooden dowel expelled from a machine which he was operating. Claimant was paid total disability benefits, pursuant to his claim, from May 2, 1975 through February 8, 1976.

During the course of treatment, the claimant was diagnosed as having pre-existing organic heart disease. This condition was of either rheumatic or congenital origin but, before the injury sustained on April 30, 1975, was placid and unmanifested clinically. The medical testimony here indicates that the blow to the chest aggravated this pre-existing condition and caused the claimant's heart to fibrillate -- to beat in a very rapid and irregular manner.

The fibrillation, in the presence of a pre-existing deformed aortic valve in claimant's heart, presented a dangerous health situation requiring corrective surgery.

[ 49 Pa. Commw. Page 251]

On September 9, 1975, Dr. George J. D'Angelo performed open heart surgery and replaced the defective valve. The claimant recovered from the surgery without incident.

During February 1976, the employer filed a petition for termination based on an affidavit of Dr. D'Angelo that claimant's disability was no longer related to the blow to the chest but was solely due to pre-existing heart disease.

Following hearings on the employer's termination petition, the referee's determination was to terminate claimant's benefits as of February 9, 1976 since "the claimant's medical evidence does not affect [ sic ] a causal connection between the injury of April 30, 1975 and any disability the claimant now suffers." The referee's order of termination was appealed to the Board, and it affirmed the decision of the referee. This appeal followed and we affirm.

Our scope of review, where the burden of proof before the Board was on appellee, is limited to a determination of whether constitutional rights were violated, errors of law were committed, or necessary findings of fact were unsupported by substantial evidence. Locastro v. Workmen's Compensation Appeal Board, 32 Pa. Commonwealth Ct. 390, 379 A.2d 668 (1977).

The claimant makes three arguments in support of his appeal here.

First: The employer did not present sufficiently definite and precise proof that the disabling fibrillation caused by the blow to claimant's chest on April 30, 1975 had ceased.

Although there is testimony in the record from Dr. Charles E. Cleland that the claimant continues to suffer from recurring fibrillation and that such recurrences are causally related to the injury suffered by claimant on April 30, 1975, there is also testimony

[ 49 Pa. Commw. Page 252]

    from Dr. D'Angelo that the disability the claimant had following surgery was the result of claimant's pre-existing condition rather than the aggravation that occurred following the blow to the chest on April 30, 1975.*fn1 Thus, there is medical testimony which is conflicting,

[ 49 Pa. Commw. Page 253]

    and it is hornbook law that it was for the referee, as the factfinder, to judge credibility and determine the weight to be accorded the conflicting evidence.

The employer had the burden of proving claimant's disability had ceased and we must agree that the referee properly concluded that the employer had adduced substantial evidence at the hearings to meet its

[ 49 Pa. Commw. Page 254]

    burden. The evidence of Dr. D'Angelo supports the referee's conclusion that the disability caused by the blow to claimant's chest on April 30, 1975 had ceased.

Second: The referee and the Board both were guilty of an abuse of discretion in refusing to undertake an additional medical examination of the claimant.

Unfortunately for the claimant, the issue has been ruled upon contrary to his contention here. We held in Imperial Food Products v. Tomarelli, 28 Pa. Commonwealth Ct. 150, 367 A.2d 732 (1977), that the authority of a referee or the Board to appoint an impartial medical witness when there is a conflict in the medical testimony is clearly a discretionary authority. Consequently, the failure to exercise that discretion does not constitute reversible error where, as here, the referee and the Board chose to base their decisions on the testimony of one of the medical witnesses. Workmen's Compensation Appeal Board v. Jones & Laughlin Steel Corp., 22 Pa. Commonwealth Ct. 469, 349 A.2d 793 (1975).

Third: The employer failed to establish a sufficient improvement in the claimant's "earning power" to justify the termination of his total disability benefits.

We must have in mind that the termination of compensation benefits in this case was ordered on the basis that claimant's present physical condition is causally related to a heart condition with a congenital or rheumatic origin and is not causally related to his work-related injury of April 30, 1975. Therefore, we must conclude that, where the employer establishes that a claimant's medical problems causally relate to a pre-existing condition and where the employer presents evidence that the claimant no longer suffers a disability causally related to the work-related injury, the referee may terminate benefits without regard to the

[ 49 Pa. Commw. Page 255]

    question of earning power. Locastro v. Workmen's Compensation Appeal Board, supra. When it is established that claimant suffers a partial disability related to his work-related injury and is unable to return to his previous employment, the employer has the burden of proving available employment within the claimant's existing physical capacity. Then surfaces the relevant question as to whether a loss of earning power is related to the work-related injury. Barrett v. Otis Elevator Co., 431 Pa. 446, 246 A.2d 668 (1968).

Accordingly, for the reasons set forth above, the decision of the Board sustaining the order of the referee is affirmed.

Order

And Now, this 7th day of February, 1980, the appeal of Peter Costanzo is hereby dismissed, and the order of the Workmen's Compensation Appeal Board, dated December 14, 1978, is affirmed.

Judge DiSalle did not participate in the decision in this case.

Disposition

Affirmed.


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