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JOSEPH R. BARNA v. WORKMEN'S COMPENSATION APPEAL BOARD (JONES & LAUGHLIN STEEL CORPORATION) (03/04/85)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: March 4, 1985.

JOSEPH R. BARNA, SR., PETITIONER
v.
WORKMEN'S COMPENSATION APPEAL BOARD (JONES & LAUGHLIN STEEL CORPORATION), RESPONDENTS

Appeal from the Order of the Workmen's Compensation Appeal Board in the case of Joseph R. Barna, Sr. v. Jones & Laughlin Steel Corporation, No. A-83872.

COUNSEL

Richard G. Spagnolli, with him, John W. McTiernan, McArdle, Caroselli, Spagnolli & Beachler, for petitioner.

Roy F. Walters, Jr., with him, Michael D. Sherman, Fried, Kane, Walters & Zuschlag, for respondent, Jones & Laughlin Steel Corporation.

Judges Craig and Palladino and Senior Judge Barbieri, sitting as a panel of three. Opinion by Judge Palladino. Judge Williams Jr., did not participate in the decision in this case.

Author: Palladino

[ 88 Pa. Commw. Page 84]

Joseph R. Barna, Sr. (Claimant) appeals from an order of the Workmen's Compensation Appeal Board (Board) affirming a referee's decision which terminated his workmen's compensation benefits. We reverse.

The essential facts, as found by the referee, are not disputed. Claimant was injured during the course of his employment with Jones & Laughlin Steel Corporation (Respondent) on July 18, 1977. In August of 1977, Claimant was admitted to a hospital and diagnosed as suffering from eleven different ailments, including lumbosacral strain with radiculitis and latent syphilis with probable neurosyphilis.

On October 10, 1977 Respondent executed a notice of compensation payable which provided that Claimant had sustained acute lumbosacral strain and was entitled to compensation for a total disability beginning

[ 88 Pa. Commw. Page 85]

July 23, 1977. On October 2, 1978 the referee, upon stipulation of the parties, issued an order that Claimant be reimbursed for various medical expenses arising from the July 18, 1977 injury. On December 4, 1978 Respondent filed a petition for review with the referee alleging that there had been a change in the nature and character of Claimant's disability.*fn1

The referee, after a hearing, found that because the notice of compensation payable had admitted that the disability was work-related, Respondent was precluded from asserting that the disability was not

[ 88 Pa. Commw. Page 86]

    work-related from July of 1977 until the petition for review was filed on December 4, 1978. The referee concluded that Respondent was entitled to an order of termination as of December 4, 1978, however, because the Claimant's disability had never been work-related.

The Board affirmed the referee's decision on the ground that the findings of fact were supported by substantial evidence. Claimant now appeals to this Court. When, as here, the party with the burden of proof prevails below, review by this Court is limited to whether an error of law was committed and whether findings of fact were supported by substantial evidence, leaving to the factfinder questions of credibility and evidentiary weight. J.I. Hass Co., Inc. v. Workmen's Compensation Appeal Board, 63 Pa. Commonwealth Ct. 82, 437 A.2d 786 (1981).

Claimant's primary argument is that the order of the Board, affirming the referee's decision, committed an error of law based upon the holding of the Supreme Court of Pennsylvania in Beissel v. Workmen's Compensation Appeal Board, 502 Pa. 178, 465 A.2d 969 (1983). In Beissel our Supreme Court held that a notice of compensation payable filed by an employer, after the employer had an opportunity to and did investigate the cause of a claimant's disability, constituted an admission of the employer's liability and precluded the employer from later litigating such liability under the guise of a termination petition.*fn2

[ 88 Pa. Commw. Page 87]

    to litigate that which it has already admitted. This we will not do." Id. at 185, 465 A.2d at 972.

Respondent attempts to distinguish this case from Beissel by arguing that the termination is proper under the first paragraph of Section 413 of the Act, 77 P.S. § 771 (§ 771), which states that a referee may review and modify or set aside a notice of compensation payable if it be proved that the notice was in any material respect incorrect.*fn4

We find that this distinction is without merit and for us to allow it would be to circumvent the clear mandate of Beissel. The only significant difference in the case before us is that Respondent filed a petition for review where in Beissel the employer filed a petition for termination. See 502 Pa. at 181, 465 A.2d

[ 88 Pa. Commw. Page 89]

    at 970. While the filing of a petition for review would appear to place Respondent under the language of § 771, the record clearly reveals that Respondent and the referee treated the petition as one for termination under § 772. In the petition for review Respondent alleged a change in the nature and character of Claimant's disability, further, the referee entered a termination order.*fn5 Thus it is not clear whether Respondent intended to proceed under § 771 or § 772. While this Court has held that strictness of pleading is not required under the Act and that relief will be granted if it is appropriate under any section of the Act, Royal Factories v. Garcia, 17 Pa. Commonwealth Ct. 59, 330 A.2d 864 (1975), we hold that Beissel precludes the termination of Claimant's benefits pursuant to either § 771 or § 772 on the facts presented in the case before us.

Respondent alleged a change in Claimant's disability. It then presented evidence that Claimant's disability had not changed, but that the disability had never been related to Claimant's July 18, 1977 injury. Because Claimant's injury occurred in July and Claimant promptly reported the injury to Respondent and sought medical advice from Respondent's company physician prior to the October execution of the notice of compensation payable, we conclude that Respondent had an opportunity to investigate the cause of Claimant's disability.*fn6 The referee entered an order

[ 88 Pa. Commw. Page 90]

    of termination effective December 4, 1978 on the basis that the injury was never work-related.*fn7 We must, therefore, hold that this case is clearly controlled by Beissel and that Respondent cannot come into Court more than a year after the notice of compensation payable was executed to litigate that which it has already admitted. An employer may not refuse to avail itself of an opportunity to investigate a workmen's compensation claim, enter into a notice of compensation payable and then seek to litigate the cause of a claimant's disability at a later date.*fn8

Accordingly, we reverse the order of the Workmen's Compensation Appeal Board and remand the case for proceedings consistent with this opinion.

[ 88 Pa. Commw. Page 91]

Order

And Now, March 4, 1985, the order of the Workmen's Compensation Appeal Board, No. A-83872, dated October 20, 1983 is reversed and the case is remanded for proceedings consistent with this opinion.

Jurisdiction relinquished.

Judge Williams Jr., did not participate in the decision in this case.

Disposition

Reversed and remanded.


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