Appeal from the Order of the Workmen's Compensation Appeal Board in case of Calvin Prazinko v. Bethlehem Mines Corporation, No. A-85859.
Robert G. Rose, Spence, Custer, Saylor, Wolfe & Rose, for petitioner.
Timothy P. Creany, Pawlowski, Long, Creany & Tulowitzki, for respondent, Calvin Prazinko.
Judges MacPhail and Doyle, and Senior Judge Barbieri, sitting as a panel of three. Opinion by Judge MacPhail.
[ 94 Pa. Commw. Page 478]
Bethlehem Mines Corporation (Employer) appeals a decision of the Workmen's Compensation Appeal Board (Board) denying its petition to terminate workmen's compensation benefits payable to Calvin Prazinko (Claimant). We vacate and remand.
Claimant was awarded benefits pursuant to Section 301(a) of The Pennsylvania Workmen's Compensation Act (Act)*fn1 on April 13, 1977. The referee found that Claimant was permanently and totally disabled by reason of coal worker's pneumoconiosis.*fn2 The referee's order was never appealed.
On December 28, 1981, Employer filed a termination petition. The petition alleges that Claimant is no longer totally nor partially disabled referencing an evaluation and examination by Dr. Raymond J. Lantos as of October 5, 1981.
[ 94 Pa. Commw. Page 479]
At a hearing before the same referee who was involved in the 1977 proceedings, Employer offered testimony that Claimant was observed on numerous occasions working as a trash collector and medical evidence that Claimant was not disabled from pneumoconiosis. The referee denied the petition because, in his view, it was barred by res judicata in that the extent and degree of Claimant's disability had been determined in his prior decision, in which he found that Claimant was totally and permanently disabled as a result of coal workers' pneumoconiosis.
Employer appealed the referee's decision to the Workmen's Compensation Appeal Board. The Board agreed with Employer that the matter was not barred by res judicata. The Board cited Haney v. Workmen's Compensation Appeal Board, 65 Pa. Commonwealth Ct. 461, 442 A.2d 1223 (1982), for the proposition that the Board may affirm the decision of the referee if he makes the right decision for the wrong reason. The Board then affirmed the referee for two reasons: (1) because a termination petition is inappropriate in the case of a "progressive disease"; and (2) because the Employer did not meet its burden of proof in that it did not show a change in Claimant's condition.
[ 94 Pa. Commw. Page 480]
To prevail in a petition for termination of compensation, the employer must meet its burden of proving conclusively that the claimant's disability has terminated. Certainteed Corporation v. Workmen's Compensation Appeal Board, 57 Pa. Commonwealth Ct. 646, 426 A.2d 1282 (1981). Where the party with the burden of proof has not prevailed before the Board, review by this Court is limited to determining whether constitutional rights were violated, whether an error of law was committed or whether there has been a capricious disregard of competent evidence. ...