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decided: August 10, 1988.


Appeal from the Order of the Commonwealth Court entered August 20, 1985 at No. 1957 C.D. 1984, affirming a decision of the Workmen's Compensation Appeal Board entered at No. A-86328


Mark B. Weber, Michael D. Kracht, Perkasie, for appellant.

Donald Ewieand, Jr., Thomas A. Wallitsch, Allentown, for Edgar Const. Co.

Curtis C. Creveling, Jr., Allentown, for Esten Lumber Products.

Nix, C.j., and Larsen, Flaherty, McDermott, Hutchinson, Zappala and Papadakos, JJ. Hutchinson, Former J., did not participate in the decision of this case. McDermott, J., files an Opinion in Support of Affirmance in which Flaherty and Zappala, JJ., join. Nix, C.j., files an Opinion in Support of Reversal in which Papadakos, J., joins. Papadakos, J., files an Opinion in Support of Reversal in which Larsen, J., joins.

Author: Per Curiam

[ 519 Pa. Page 33]


This being an equally divided Court the Order of the Commonwealth Court is affirmed.


McDERMOTT, Justice.

Appellant, Robert Phillips, appeals from an order of the Commonwealth Court affirming an order of the Workmen's Compensation Appeal Board denying his petition to reinstate benefits. The case involves the willful concealment of relevant medical information by a claimant's attorney and

[ 519 Pa. Page 34]

    the effect of such action on a compensation agreement. The germane facts of this case are set out below.

In February, 1977, appellant was employed by appellee, Edgar Construction Company (Edgar), when he allegedly fell from a ladder and injured his back. Despite this fall appellant continued working until July 22, 1977, at which time he was laid off. In May, 1978, appellant filed a workmen's compensation claim, alleging that he was totally disabled due to the February fall. Counsel for Edgar thereupon sought to investigate in preparation for contesting the claim. As part of that investigation defense counsel requested from appellant's counsel all medical records and reports concerning appellant's injuries.

In response to that request appellant's counsel supplied medical information which was favorable to appellant's position, but intentionally omitted a report which indicated that because of a prior back condition it was not possible to relate appellant's present back problem to the fall at work. This report had been prepared by appellant's chiropractor, Dr. Richard Casanova, whom appellant had been seeing for ten years for various ailments. Significantly, not only was the report omitted but the fact that appellant had been under the care of Dr. Casanova was also suppressed.

During the course of these first compensation proceedings appellant presented the testimony of a board certified neurosurgeon, Dr. Robert Jaeger. Dr. Jaeger first saw appellant in January, 1978, approximately eleven months after the fall. At that time appellant's history with Dr. Casanova was not revealed to Dr. Jaeger, nor was the existence of Dr. Casanova's opinion letter.

Based on his examination of appellant, and appellant's oral history, Dr. Jaeger concluded that he had a disabling condition known as facet syndrome, and that this condition was related to his fall. Dr. Jaeger stated his opinion on this matter in an unequivocal manner. Faced with this testimony Edgar eventually decided not to further contest appellant's claim and filed a notice of compensation payable in July, 1979, which acknowledged the existence of appellant's

[ 519 Pa. Page 35]

    disability from July, 1977. Two supplemental agreements were also entered into in July, 1979, which provided for varying amounts of compensation payments depending on appellant's other income, and which provided for a suspension of benefits as of July 27, 1979.

The reason for the suspension of benefits, and for the necessity to adjust the compensation amount, was the fact that as of September, 1978, appellant had been working for appellee, Esten Lumber Products (Esten), as a truck driver, a less physically demanding position.

Unfortunately for appellant, Esten experienced a business lull, necessitating the elimination of his job as a driver in February, 1980. Esten, however, offered appellant a manufacturing job, which appellant accepted. This job required a significant amount of bending and lifting, and appellant finally quit the job on October 8, 1980, citing his back problems as the reason.

Subsequently, on January 16, 1981, appellant filed a petition for reinstatement of his compensation against Edgar, as well as a new claim for compensation against Esten. On the latter claim he alleged that the continuous bending and lifting resulted in nerve entrapment and/or aggravation of the pre-existing back injury.

Counsel for Edgar again made a discovery request for all relevant medical information. However, in response to this request, appellant's counsel included the previously suppressed report from Dr. Casanova, which stated in relevant part:

"I have treated Mr. Phillips for lumbar sacral spasms and problems with the right sciatic nerve on occasions over the past ten years so it is impossible for me to either determine or give you an honest opinion as to whether the accident had any relativity to Mr. Phillips claim."

At the bottom of this report was the handwritten notation: "Do not sent to ins. co. (sic) lawyer." This notation had been placed there by appellant's counsel.

[ 519 Pa. Page 36]

Counsel for Edgar thereupon filed a petition for review, alleging that appellant was not disabled due to the February, 1977, fall, and that the notice of compensation and two supplemental agreements had been secured by fraud and/or misrepresentation. This petition for review was consolidated for hearing purposes with the two claim petitions filed by appellant.

During the course of the hearings regarding these consolidated petitions testimony of appellant's treating neurosurgeon, Dr. Robert M. Jaeger, was again introduced. However, this time Dr. Jaeger was presented with the report from Dr. Casanova, which he had never previously seen, and asked whether the prior condition would have affected his original diagnosis. That testimony developed as follows:

Q. [COUNSEL] I'm not sure in terms -- as you well know, Doctor, the law makes or requests of doctors things that sometimes are tough to give, but can you say to a reasonable medical certainty now knowing what you have been told today and never knew before, that the facet syndrome that you diagnosed was caused by this fall? Are you still able to do that, Doctor, to a reasonable degree of medical certainty knowing about the prior ten year back problems that Mr. Phillips at least indicated -- at least Dr. Casanova indicates that he had?

A. [DR. JAEGER] I think that one can conclude from this that there has been pain for a prolonged period of time and that there was an event that influenced this for the worse, but one cannot be precise that this is the only cause.

Q. [COUNSEL] Might he be disabled today, Doctor, based upon his chronic back condition as opposed to the fall ...

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