Appeal from the final order of the Commonwealth Court at No. 3210 C.D. 1983, entered March 4, 1985, reversing and remanding the order of the Workmen's Comp. Appeal Bd., dated October 20, 1983, at No. A-83872, affirming the Order of the referee at No. 208-10-0128, dated May 19, 1982. 88 Pa. Commw. Ct. 83,
Nix, C.j., and Larsen, Flaherty, McDermott, Hutchinson, Zappala and Papadakos, JJ. Larsen, J., files a dissenting opinion in which Nix, C.j., joins.
We granted the petition for allowance of appeal of Jones & Laughlin Steel Corp.*fn1 (hereinafter referred to as "J & L") to determine whether our decision in Beissel v. W.C.A.B. Page 520} (John Wanamaker, Inc.), 502 Pa. 178, 465 A.2d 969 (1983) precludes termination of disability payments under 77 P.S. § 771, where the payments were made under a mistaken belief that the cause of an employee's disability was work-related.
Appellee, claimant under The Pennsylvania Workmen's Compensation Act, Act of June 2, 1915, P.L. 736, art. 1, as amended, 77 P.S. § 1 et seq., (hereinafter referred to as "the Act") suffered back pain caused by an acute lumbo sacral strain after operating a mobile crane during the course of his employment.*fn2 He notified his employer within a few days of the occurrence, and then sought treatment at local hospitals. Under a notice of compensation payable dated October 10, 1977, claimant began receiving biweekly disability payments of $199.00 commencing July 30, 1977. On October 13, 1977, Dr. El Attar, a physician for J & L, requested claimant's hospital records. Based upon that review, Dr. El Attar concluded that claimant's disability was not work-related, but was the result of the advanced stage of an underlying illness contracted during World War II. Dr. El Attar's conclusion was further supported by observations of claimant after the commencement of compensation payments, where claimant exhibited new symptoms which were consistent with Dr. El Attar's diagnosis and which were not claimed to be work-related.
In December 1978, J & L filed with the department of labor and industry a petition to review the referee's award grounded upon an alleged "change in the nature and character of claimant's disability."*fn3 In support of its petition, J
& L offered evidence which tended to prove, not that there had been a change in the nature of claimant's disability, but rather that the cause of claimant's disability was not work-related. The referee accepted J & L's evidence, and, upon concluding that claimant's disability was unrelated to his work, the referee entered an order terminating disability benefits effective December 4, 1978.*fn4 On appeal the Board affirmed.
Authority for the referee's award is provided at 77 P.S. § 771 (Supp. 1986) as follows:
A referee of the department may, at any time, review and modify or set aside a notice of compensation payable and an original or supplemental agreement[,] or upon petition filed by either party with the department, or in the course of the proceedings under any petition pending before such referee, if it be proved that such notice of compensation payable or agreement was in any material respect incorrect.
[Emphasis supplied.] There can be no question that an agreement or notice of compensation payable which provides for payment for a disability which is not work-related at its outset is materially incorrect. Wertz v. W.C.A.B. (Ferro Corp.), 90 Pa. Commw.Ct. 515, 496 A.2d 90 (1985).
Commonwealth Court reversed the termination of benefits, citing our recent opinion in Beissel, supra. Beissel was a workmen's compensation claimant who underwent surgery for a bad back 13 months after she slipped and fell at work. Four written medical reports, including three prepared for employer's insurance carrier, indicated that Beissel's back problems were related to her fall. An agreement was reached between Beissel and her employer's insurance carrier, and nearly two years after the accident, the employer filed a notice of compensation payable for a lower back injury. After paying ...