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ANGEL L. ORTIZ v. WORKMEN'S COMPENSATION APPEAL BOARD (FAIR TEX MILLS (12/18/86)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: December 18, 1986.

ANGEL L. ORTIZ, PETITIONER
v.
WORKMEN'S COMPENSATION APPEAL BOARD (FAIR TEX MILLS, INC.), RESPONDENTS

Appeal from the Order of the Workmen's Compensation Appeal Board, in case of Angel L. Ortiz v. Fair Tex Mills, Inc., No. A-86742.

COUNSEL

David G. Welty, for petitioner.

Martin J. Fallon, Jr., with him, David A. Pennington, Swartz, Campbell & Detweiler, for respondent, Fair Tex Mills, Inc.

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

Author: Palladino

[ 102 Pa. Commw. Page 494]

Angel L. Ortiz (Petitioner) appeals from an order of the Workmen's Compensation Appeal Board (Board) affirming the termination of his compensation and the refusal of the referee to award him payment of a penalty pursuant to sections 413(b)*fn1 and 435*fn2 of The Pennsylvania Workmen's Compensation Act (Act). We affirm.

[ 102 Pa. Commw. Page 495]

On December 16, 1980, Petitioner sustained an injury to his cervical spine while on the job. Fair Tex, Inc. (Employer) paid him workmen's compensation pursuant to a notice of compensation payable. Alleging that Employer improperly terminated his compensation on February 11, 1981, Petitioner filed a reinstatement petition on March 12, 1981 which contained a request for payment of a penalty and counsel fees. Employer denied the allegation and on March 31, 1981 filed a suspension petition and requested supersedeas. The supersedeas request was denied on April 22, 1981. Employer, on June 29, 1981, filed a termination petition accompanied by an affidavit from Dr. Richard K. White stating that Petitioner was fully recovered and able to resume his prior job as of June 11, 1981.

The petitions for reinstatement, suspension and termination were joined for resolution before the referee. During the proceedings Petitioner presented as evidence the deposition of Dr. Parvis Kambin, who testified unequivocally that Petitioner remained fully disabled because of his work injury. Employer offered the deposition of Dr. White, who testified unequivocally that Petitioner was fully recovered from his work injury and able to resume his prior job.

On August 22, 1983 the referee issued his decision on the three petitions. He granted Employer's termination

[ 102 Pa. Commw. Page 496]

    petition effective June 11, 1981 and dismissed both the reinstatement and suspension petition.*fn3 No penalty was imposed. The referee concluded:

Claimant [Petitioner] failed to prove by sufficient competent evidence that compensation ceased, improperly or otherwise, as of February 11, 1981, and Claimant failed to establish non-compliance by Defendant [Employer] with the Workmen's Compensation Act or the rules and regulations promulgated thereunder, within the meaning of § 413 and § 435 of the Act.

Referee's Conclusion of Law, No. 4. Petitioner appealed to the Board, which affirmed the referee's decision on August 23, 1985. A timely petition for review was subsequently filed by Petitioner with this Court.

Petitioner contests the termination of his compensation and the failure of the referee to impose a penalty on Employer for stopping his compensation on February 11, 1981 in violation of Section 413 of the Act. He contends that: (1) there is no substantial competent evidence in the record to support the referee's finding that he was fully recovered and able to return to his prior job; and (2) the referee erred in concluding that Petitioner had failed to prove a violation of Section 413(b) of the Law and, therefore, the penalty provided at Section 435(d)(i) of the Law should have been imposed. We will dispose of the termination issue first and then address the penalty contention.

The Employer bears the burden in a termination proceeding of proving that a work-related disability has ceased. Gallo v. Workmen's Compensation Appeal Board (United Parcel Service), 95 Pa. Commonwealth Ct. 158, 504 A.2d 985 (1986). We are limited to determining

[ 102 Pa. Commw. Page 497]

    whether constitutional rights were violated, an error of law was committed or necessary findings of fact are supported by substantial evidence. Estate of McGovern v. State Employees' Retirement Board, 512 Pa. 377, 517 A.2d 523 (1986).

Petitioner contends that the referee erred in accepting the opinion of Dr. White that he was fully recovered from his work injury and in rejecting that of Dr. Kambin that he remained totally disabled. Petitioner correctly notes that it is the referee who weighs conflicting evidence and determines credibility, including testimony from medical experts. However, he asserts that Dr. White's testimony was incompetent because Dr. White only conducted a brief examination of Petitioner and interpreted Petitioner's myelogram as demonstrating a "normal anatomical varation" while Dr. Kambin and the radiologist had interpreted it as demonstrating a defect. These are issues of credibility and the weight to be accorded conflicting medical opinions and do not relate to the competence of the testimony.

On the question of the imposition of a penalty, this Court has held that a violation of the Act, or of the rules and regulations issued pursuant to the Act, must appear in the record in order for a penalty to be appropriate.*fn4 Glagola v. Workmen's Compensation Appeal Board, 59 Pa. Commonwealth Ct. 80, 428 A.2d 1016 (1981). Petitioner contends that Employer terminated compensation payments in violation of Section 413 of the Act on February 11, 1981. Where a penalty is sought, the burden of proof is on the Employer to show that no violation

[ 102 Pa. Commw. Page 498]

    of the Act occurred, but the Petitioner must first show that payments were actually suspended or terminated. Petitioner did not meet this burden.

When a claim for penalties is made in conjunction with another proceeding, the referee should "permit the employer to respond to the request, and thereafter schedule a hearing on the issue, if one becomes necessary." Edmond v. Workmen's Compensation Appeal Board, 43 Pa. Commonwealth Ct. 458, 462, 402 A.2d 715, 717 (1979). Here the request was made in conjunction with a reinstatement petition and Employer, in his answer, stated that payments were presently being made. Petitioner, at the July 14, 1981 hearing scheduled on the reinstatement and suspension petitions, offered no evidence concerning the date compensation was stopped.*fn5

Petitioner finally contends that Employer established no reasonable basis for his contest and therefore payment of a penalty, counsel fees and costs, pursuant to Sections 413 and 435 of the Act should have been imposed. The standard for the award of counsel fees is found in Section 440 of the Act,*fn6 and is different from the standard for the imposition of a penalty. See M. A. Bruder & Son, Inc. v. Workmen's Compensation Appeal Board, 86 Pa. Commonwealth Ct. 353, 485 A.2d 93 (1984). Our review shows that the record contains

[ 102 Pa. Commw. Page 499]

    substantial evidence to support a finding that the contest was reasonable.

Accordingly, we affirm.

Order

And Now, December 18, 1986, the order of the Workmen's Compensation Appeal Board, No. A-86742, dated August 23, 1985 is affirmed.

Disposition

Affirmed.


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