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SHERRY NELSON v. WORKMEN'S COMPENSATION APPEAL BOARD (ELLIOTT COMPANY (05/21/87)

decided: May 21, 1987.

SHERRY NELSON, PETITIONER
v.
WORKMEN'S COMPENSATION APPEAL BOARD (ELLIOTT COMPANY, DIVISION OF CARRIER CORPORATION), RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board, in case of Sherry Nelson v. Elliott Company-Div. of Carrier Corp., No. A-87133.

COUNSEL

Irving M. Portnoy, Litman, Litman, Harris, Portnoy and Brown, P.A., for petitioner.

Francis J. DiSalle, with him, Leta V. Pittman, William K. Herrington & Associates, for respondents.

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

Author: Barry

[ 106 Pa. Commw. Page 302]

Sherry Nelson, claimant, was injured in the course of her employment as a janitress with Elliott Company (employer), a division of Carrier Corporation. Before us is claimant's appeal from the Board's decision to grant employer's termination petition and cease benefits to claimant.

On September 26, 1979, claimant slipped and fell striking her back and head. She was unable to perform her job responsibilities and, pursuant to a notice of compensation payable received compensation benefits. On February 9, 1983, employer filed a termination petition claiming that claimant had made a full and complete recovery and was capable of returning without limitation to her former occupation as a janitress. Attached to this petition was a physician's affidavit of recovery executed by Dr. Samuel Sherman, M.D., a specialist in rehabilitation medicine. The referee granted this petition on October 28, 1983, and the Workmen's Compensation Appeal Board (the Board), noting that the referee harmlessly misapplied the burden of proof when it placed the burden of proving the additional psychiatric disability of which claimant complained during the termination petition proceedings on the claimant, affirmed the referee. Claimant appealed to this Court arguing that the Board exceeded its authority when, after determining that the referee misallocated the burden of proof, it proceeded to determine for itself that the employer had sustained its burden. In fact, claimant maintains, had the burden been properly applied, the employer would not have met its burden because there was no substantial competent evidence to show that all disability resulting from the claimant's physical injury had ceased. Claimant also contests the referee's acceptance

[ 106 Pa. Commw. Page 303]

    of the testimony of Dr. Sherman and asserts that Dr. Sherman was not competent to testify because the subject matter to which he was testifying was outside his area of expertise. In addition, claimant posits that the referee committed an error of law in "basing his factual and legal conclusion on the testimony of Dr. Sherman whose testimony was legally and evidentially improper, incompetent and inadmissible."

We begin by noting that the burden to prove that the claimant is no longer disabled as a result of injuries arising from or related to events which served as the basis on which benefits have been paid is on the employer, Olivetti Corporation v. Workmen's Compensation Appeal Board, 75 Pa. Commonwealth Ct. 584, 462 A.2d 934 (1983), and if a claimant is currently disabled, the employer must show a lack of causal connection between that disability and the compensable injury. Unity Builders, Inc. v. Workmen's Compensation Appeal Board, (Ellisor), 50 Pa. Commonwealth Ct. 527, 413 A.2d 40 (1980).

The claimant maintains that Dr. Sherman's testimony is incompetent because it is outside the area of his expertise as a rehabilitation specialist and in the realm of psychiatric medicine. As the Board has aptly pointed out, this argument has been raised unsuccessfully many times. See Bell Telephone Company v. Workmen's Compensation Appeal Board (Gussey), 91 Pa. Commonwealth Ct. 112, 496 A.2d 1277 (1985); Kocher v. Workmen's Compensation Appeal Board, 52 Pa. Commonwealth Ct. 106, 415 A.2d 162 (1980); Workmen's Compensation Appeal Board v. Branch Motor Express, 18 Pa. Commonwealth Ct. 262, 334 A.2d 847 (1975).

With respect to claimant's argument that Dr. Sherman's testimony was inadmissible, we note that the Workmen's Compensation authorities are not bound to follow common law or statutory rules of evidence. See ...


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