No. 73 M.D. Appeal Docket 1984. Appeal from the Order of the Commonwealth Court of Pennsylvania, No. 2005 C.D. 1982, dated May 15, 1984. 82 Pa. Commonwealth Ct. 459,
Nix, C.j., and Larsen, Flaherty, McDermott, Hutchinson, Zappala and Papadakos, JJ. Hutchinson, J., joins the majority opinion and files a concurring opinion. Larsen, J., files a dissenting opinion in which Papadakos, J., joins.
In this case we revisit an issue recently addressed in Palmeri v. Commonwealth of Pennsylvania, Pennsylvania State Police, 508 Pa. 544, 499 A.2d 278 (1985), concerning the burden of proof required to terminate benefits under the Heart and Lung Act, Act of June 28, 1935, P.L. 477 as amended, 53 P.S. § 637 (hereinafter the "Act"). In Palmeri we determined the standard of proof to be that evidence which establishes to a "scientific probability" that the employee's disability is permanent. Today we re-examine that standard and its practical ramifications.
The appellee, Michael Cunningham, injured his lower back on November 10, 1980, in the performance of his duties as a Pennsylvania State Policeman. The injury was disabling and appellee began receiving benefits under the Heart and Lung Act.*fn1
Cunningham's treatment initially consisted of physical therapy. Later he underwent back surgery to relieve the severe pain and to rehabilitate his back. Neither form of treatment eliminated his pain. In seeking further medical help, the appellee consulted several doctors, each of whom agreed that he was partially disabled. The doctors disagreed, however, on the proper course of treatment that would improve his condition. Their recommendations ranged from treatment by conservative physical therapy to additional surgery.*fn2
In March, 1982, Cunningham received a notice from the Pennsylvania State Police stating:
The period of time during which compensation has been paid to you for your work-related injury has exceeded that which is ordinarily indicative of a temporary disability.
Therefore, it must be determined whether or not your disability is permanent.
You may wish to appear to present testimony or medical records concerning your condition. If so you must contact this Bureau within ten (10) days of receipt of this letter. The time and place of the hearing will then be established.
If you choose not to appear for a hearing the temporary or permanent nature of your disability will be determined independently. The determination will be based upon records and reports now on file and the results of any pending medical examination ordered by the Department or State Workmen's Insurance Fund (SWIF).*fn3
Cunningham replied to the notice by informing his employer that he would be present for a hearing. At the hearing held on June 29, 1982, Cunningham testified that he believed he could return to work at a desk job provided that the assignment was close to his home.*fn4
On July 16, 1982, five hundred and ninety-five (595) days after Cunningham's disability began, a Hearing Panel comprised of the State Police Director of Personnel, a department commander, and the State Police medical officer determined that Cunningham's condition was no longer considered temporary, and that his compensation under the Heart and Lung Act should cease. The panel stated that the decision to discontinue benefits was "based primarily upon the length of time [the] disability [had] continued and the absence of [a] favorable prognosis for [his] return to work."*fn5 Cunningham appealed the decision and the Commonwealth Court reversed, holding that there was insufficient support in the record for the Hearing Panel's decision.
The Commonwealth Court's holding was derived from the following standard of proof:
[I]t was critical for the State Police to establish on the record a factual basis for concluding that the duration of Palmeri's incapacitation raised a reasonable inference of permanence. In order to conclude that his condition was permanent there needed to be evidence linking Palmeri's circumstances -- i.e., the nature of his condition, his treatment history, his general health, his current medical status, and other relevant factors -- to a scientific probability that his condition would not improve sufficiently to make him capable of returning to active duty.
Palmeri v. Commonwealth of Pennsylvania, 82 Pa. Commw. 348, 474 A.2d 1223 (1984).
Appellants appealed from the decision of the Commonwealth Court*fn6 arguing that the above standard is erroneous both as to the nature and degree of proof required to terminate benefits under the Act. Appellants maintain that the employer should not have to prove that the disability is permanent, but instead that the disability is not temporary. Appellants also contend that the Commonwealth Court erred in adopting the "scientific probability" standard instead of the less-burdensome "reasonable inference" standard. Because of the confusion in this area, we will now re-examine this issue and clarify our earlier holding in Palmeri, supra.
As noted in the Commonwealth Court's opinion in Palmeri, supra, "[t]he principal difficulty of this case is the absence of articulated standards for determining when a disability, once having been classified as temporary under the Act, may be deemed permanent." When a court is charged with reviewing a standard of proof used in an administrative procedure, the court must uphold a standard
that is reasonable in light of the purpose and history of the act. See Pennsylvania Human Relations Commission v. Uniontown Area School District, 455 Pa. 52, 313 A.2d 156 (1973) (an interpretive rule, as opposed to a legislative rule depends for its validity on the willingness of a reviewing court to say that it in fact tracks the meaning of the statute it interprets); cf. Commonwealth v. Harmar Coal Co., 452 Pa. 77, 306 A.2d 308, appeal dismissed 415 U.S. 903, 94 S.Ct. 1395, 39 L.Ed.2d 460 (1974) (courts are not bound ...