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RICHARD H. BOYCE v. WORKMEN'S COMPENSATION APPEAL BOARD (PENN STATE SERVICES) (08/27/85)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: August 27, 1985.

RICHARD H. BOYCE, PETITIONER
v.
WORKMEN'S COMPENSATION APPEAL BOARD (PENN STATE SERVICES), RESPONDENTS

Appeal from the Order of the Workmen's Compensation Appeal Board in the case of Richard H. Boyce v. Penn State Services, No. A-84521.

COUNSEL

Robert V. Campedel, Zemprelli, Clipper & Campedel, for petitioner.

John F. Will, Jr., Will & Keisling, for respondent, Penn State Services.

Judges MacPhail, Doyle and Palladino, sitting as a panel of three. Opinion by Judge Doyle.

Author: Doyle

[ 91 Pa. Commw. Page 390]

Richard H. Boyce (Claimant) appeals from the Order of the Workmen's Compensation Appeal Board (Board) which affirmed the referee's decision denying

[ 91 Pa. Commw. Page 391]

Claimant benefits under The Pennsylvania Workmen's Compensation Act (Act). Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1-1066.

Claimant was employed as a salesman for Penn State Services for a period of eight months. On March 31, 1981, Claimant made two calls at prospective customers' homes in order to sell them Employer's basement waterproofing service. On the way home from his final call Claimant began to feel nauseous and, after arriving at his home, suffered vomiting and diarrhea. Claimant was taken to a hospital where it was determined that he had suffered a myocardial infarction. Claimant remained disabled after treatment for his condition and filed for workmen's compensation benefits. The referee denied benefits, finding that the heart attack was not causally related to Claimant's employment. The referee's decision was affirmed by the Board, and this appeal followed.

In a workmen's compensation case the burden is upon the Claimant to establish that a disabling condition is work related. El-Ha'Kim v. Workmen's Compensation Appeal Board (Sharon Steel Corp.), 79 Pa. Commonwealth Ct. 191, 468 A.2d 1170 (1983). Where, as here, the party with the burden of proof did not prevail below, our scope of review is to determine whether an error of law was committed, whether the findings of fact are consistent with each other and with the conclusions of law, and whether the findings can be sustained without a capricious disregard of competent evidence. Interstate United Corp. v. Workmen's Compensation Appeal Board, 56 Pa. Commonwealth Ct. 385, 424 A.2d 1015 (1981).

Claimant argues that the referee disregarded the competent medical evidence of Dr. Patsy A. D'Onofrio, Claimant's treating physician, who testified that

[ 91 Pa. Commw. Page 392]

Claimant's heart attack was causally related to Claimant's stress at work. This testimony was contradicted by Employer's expert witness, Dr. Larry Hurwitz, who testified that there was no causal relationship between Claimant's heart attack and his work, and further, that had stress at work been a cause of the heart attack, it would have had to have been the result of an acute emotional and stressful situation. Claimant argues that the testimony of Dr. D'Onofrio should have been given more weight because, as his treating physician, she was more familiar with Claimant's condition. The weight given to medical testimony, however, is a matter to be resolved by the finder of fact. Sledge v. Workmen's Compensation Appeal Board (Temple University), 78 Pa. Commonwealth Ct. 380, 467 A.2d 913 (1983). The referee specifically found Dr. Hurwitz to be the more credible witness, and we cannot disturb that determination.

Claimant also argues that, even assuming Dr. Horwitz' testimony to be true, there was indeed evidence that he had suffered an "acute stressful situation" prior to his heart attack. Claimant testified that he had been under chronic stress as a result of deliberately being given poor assignments which did not result in sales. Claimant further testified that on his last call before his heart attack, he was required to move boxes in the basement of a customer, and afterwards was "aggravated" that the call did not result in a sale. After a review of the record, we conclude that the referee did not capriciously disregard this evidence in reaching his decision. In other testimony Employer denied that Claimant had been deliberately given poor assignments. In addition, there was no evidence that Claimant's moving of boxes on the day of the attack was difficult or stressful. Indeed, Claimant himself testified that he felt fine physically upon leaving the

[ 91 Pa. Commw. Page 393]

    customer's house to return home. Based on this evidence, the referee was correct in concluding that there had been no acute stressful work situation on the day of the heart attack.

Claimant has also filed a supplemental brief with our Court in which he alleges that the Board abused its discretion in denying his Petition for Rehearing.*fn1 Our consideration of this issue is somewhat hampered by inadequacies in the record and inconsistencies in the pleadings.

Although we granted Claimant's Petition for Allowance to File a Supplemental Brief, Claimant's petition to the Board for rehearing was not attached to his petition here. It was also not included as part of the certified record from the Board, and the docket entries from that record fail to indicate that it was ever filed. Moreover, Claimant's Petition for Review filed with this court did not raise the rehearing issue. The only evidence that we have that it was filed is from the Claimant's reproduction of that petition in his "Partial Reproduced Record" filed in conjunction with his original brief. Of course, the subsequent filing of a supplemental brief raising a new issue does not in any manner excuse or preclude the necessity of amending the relevant pleadings.*fn2

Regarding Claimant's pleadings, Claimant made contradictory statements in his Petition for Allowance to File a Supplemental Brief,*fn3 stating first that the

[ 91 Pa. Commw. Page 394]

Board denied his petition for rehearing, and then, that the Board failed to rule on the petition.

Claimant's initial brief on the merits of the appeal filed with this Court stated affirmatively that the Board had denied his petition for rehearing. Employer never actually denied this fact in its brief, but framed its response rather on the assumption that there was such an order. In fact, a review of the certified record fails to disclose any such Board order. In Leskin v. Workmen's Compensation Appeal Board (Coca-Cola Bottling Co. of New York), 69 Pa. Commonwealth Ct. 569, 451 A.2d 1061 (1982), we held that absent a Board order on a petition for rehearing, this Court has nothing to review.*fn4

In addition, we note that under Section 426 of the Act, 77 P.S. § 871, the Board had eighteen months from the date of the order denying benefits (June 23, 1983) to make a determination on the petition for rehearing. Therefore, the Board needed to rule by December, 1984, after which Claimant would have had thirty days to appeal an adverse ruling to this Court. Subsequent to December, 1984, the Board lacked the authority to grant the petition for rehearing.*fn5 Thus, if

[ 91 Pa. Commw. Page 395]

    the Board has not yet ruled on this matter, it clearly lacks the power to do so now.*fn6

In conclusion, this Court is thus faced with a situation in which it is impossible to verify not only whether a petition for rehearing was filed with the Board, but also whether, in the event that such a petition was filed, it was ever denied. Despite the failure to properly present this issue to our Court, however, a review of the merits of Claimant's petition reveals that even had the issue been properly before us, Claimant would not have prevailed.

The decision of whether to grant a rehearing is within the discretion of the Board and our review is limited to whether there has been an abuse of that discretion. Young v. Workmen's Compensation Appeal Board (Britt & Pirie, Inc.), 72 Pa. Commonwealth Ct. 471, 456 A.2d 1150 (1983). Claimant's petition for rehearing requested that additional testimony be taken of Dr. Andres Ticzon, the cardiac specialist who performed Claimant's heart catheterization. Claimant contends that the referee gave "weight" to Dr. Ticzon's

[ 91 Pa. Commw. Page 396]

    report as "substantive testimony" without Dr. Ticzon having testified as to his opinion. A review of the record reveals no merit to this contention. Dr. Ticzon's report was reviewed and used by Dr. Hurwitz as a foundation for his report of July 2, 1981 and deposition testimony taken February 16, 1982. Dr. Ticzon's report concerning Claimant's catheterization provided Dr. Hurwitz, the Employer's witness, with no more than the factual background necessary to formulate his opinion as to the cause of the heart attack. Nowhere did the referee conclude that the report itself was substantive medical testimony as to the cause of the heart attack. Indeed, there is no evidence in the record upon which such a conclusion could have been based. In addition, Claimant has made no claim that Dr. Ticzon was unavailable at the time of the original hearings. Therefore, the Board would not have abused its discretion in denying the petition for rehearing.

For the foregoing reasons we conclude that the referee committed no error in denying benefits to the Claimant. Accordingly, we affirm the Board's decision which upheld the referee's determination.

Order

Now, August 27, 1985, the order of the Workmen's Compensation Appeal Board in the above referenced matter, dated June 23, 1983, is hereby affirmed.

Disposition

Affirmed.


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