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decided: January 11, 1989.


Appeal from the order of the Workmen's Compensation Appeal Board in the case of Margaret Brandon v. Retreat State Hospital, No. A-92535.


Nicholas S. Mattise, Robert W. Munley, P.C., for petitioner.

Daniel A. Miscavige, for respondent, State Workmen's Insurance Fund.

Judges Barry and Smith, and Senior Judge Narick, sitting as a panel of three. Opinion by Senior Judge Narick. Judge MacPhail did not participate in the decision in this case.

Author: Narick

[ 122 Pa. Commw. Page 576]

Margaret G. Brandon (Claimant) has petitioned for review of an order of the Workmen's Compensation Appeal Board (Board), which affirmed a referee's denial of workmen's compensation benefits based on a recurrence of her compensable injury.

Claimant was injured on June 26, 1979 when she tripped in a hole in the parking lot at Retreat State Hospital (Employer). She sustained injuries to her left ankle, left knee and lower back for which she received workmen's compensation payments pursuant to agreement. She ultimately required surgery on her left knee. Following this surgery, her treating physician, Dr. Raklewicz, released her to return to work on September 26, 1980. Thereafter, she signed a final receipt.

On June 25, 1982, Claimant filed a claim petition, seeking additional compensation for total disability due to the June 26, 1979 injury, dating from May 1981.

The case was assigned to a workmen's compensation referee, who treated the claim petition as a petition to set aside final receipt, and denied the petition. The Board, while affirming the referee's refusal to grant a petition to set aside final receipt, remanded for the referee to consider whether the Claimant had suffered a recurrence of her initial injury so as to entitle her to benefits.*fn1 The parties agreed that no additional evidence

[ 122 Pa. Commw. Page 577]

    was required*fn2 and submitted the matter to the referee, who decided that Claimant had failed to meet her burden of proving a recurrence. The Board affirmed, and the Claimant's appeal from that order is now before us.*fn3

The essence of Claimant's argument is that the referee's findings are not supported by substantial competent evidence. The pertinent findings are as follows:

It is elementary that an injured employe seeking reinstatement of benefits has the burden of proving the causal connection between the current condition and the prior work-related injury. There is, in fact, a need for unequivocal medical testimony to establish a continuing disability, especially in those cases where the Claimant resumed work as was the case here. There is no dispute that Claimant returned to her work at Retreat State Hospital with no loss of earnings, and continued to work there until a later point in time.

The medical testimony of Dr. Raklewicz is unrefuted in terms of the fact that he found no evidence of continued disability, and, rather, indicated that the Claimant's sole problem resulted

[ 122 Pa. Commw. Page 578]

    from a congenitally unrelated condition, in terms of a condition not related to her work injury of June 1979.

Clearly, here, there is, in fact, no obvious causal relationship between a work related incident and a disabling injury, and, thus, there must be unequivocal medical testimony to establish causation.

If there was a pre-existing condition here, then the Claimant, under Law, has the burden of establishing, by competent medical evidence, that the disability resulted from employment rather than from the natural progression of a pre-existing condition.

Two factors weigh heavily in the Referee's mind as it relates to the conclusion which he is going to reach in this matter, and that is the competent medical evidence of Dr. Raklewicz which indicated that the Claimant's disability, if any, is not related to work, but rather is due to a congenital condition, and the other fact, that Claimant returned to her job at Retreat State Hospital, and worked there until she and her family moved in 1981.

There is no evidence that the discontinuation of work at Retreat State Hospital was brought about by anything other than the voluntary moving from the area. There is no evidence that she could not perform this job, and that there was some impairment, and which impairment affected her ability to earn wages.

These two salient facts lead the Referee to conclude that Claimant has not established, from this record, that she is entitled to a reinstatement of benefits because of her recurrence of disability from her injury of June 26, 1979.

[ 122 Pa. Commw. Page 579]

As Claimant points out, there are several problems with the referee's findings and ultimate conclusions. The issue before the referee on remand, as pointed out above, was whether the Claimant had proven a recurrence of her injury. The Claimant had the burden to prove that her disability had increased or recurred subsequent to the date of the prior award. Children's Hospital. Where the causal relationship is not obvious, the subsequent period of disability must be linked to the work-related injury by unequivocal medical testimony. Id. It is obvious that the referee held the Claimant to a stricter burden, requiring her to prove by unequivocal medical testimony that her disability continued after her return to work in September 1980. While the question of whether a disability continues*fn4 after one has signed a final receipt is pertinent to the question of whether a final receipt should be set aside, it is not the germane inquiry when considering whether the disability has recurred at a later date.

The fact that the referee relied upon the medical testimony of Dr. Raklewicz is indicative of this error. Dr. Raklewicz was the physician who had performed the arthroscopic surgery on Claimant's knee. In September of 1980, he released her to return to work and testified that he considered her to be fully recovered at that time. When asked if he had seen the Claimant after September 24, 1980, Dr. Raklewicz responded: "According to my notes I saw her once, May of 1981. The dictation from that follow-up visit was lost and I really -- other than taking an X-ray of her [left] knee, I

[ 122 Pa. Commw. Page 580]

    don't really recall, but I didn't see her subsequent to that." Raklewicz deposition p. 5. Significantly, Claimant had alleged a recurrence of her injury in May 1981.

Because Dr. Raklewicz's testimony specifically related to that period of time pre-dating Claimant's alleged recurrence, his testimony was simply irrelevant to the issue before the referee, and the referee erred as a matter of law in relying upon it.*fn5

In keeping with his apparent analysis of the criteria used to set aside a final receipt, the referee emphasized the fact that Claimant returned to her job in September 1980 and worked until her voluntary move to Oklahoma to accompany her husband when he got a job there.*fn6 The referee specifically found that there was no evidence to show that Claimant's discontinuance of her work was brought about by anything other than her voluntary relocation. While it is true that Claimant did not present medical evidence of her disability until after her move,*fn7 that factor relates to the timing, rather than

[ 122 Pa. Commw. Page 581]

    to the fact of disability. Claimant did present Dr. Mueller's testimony, who first saw her on June 11, 1981, shortly after her move to Oklahoma. He attributed Claimant's disability*fn8 to the twisting injury in June of 1979. Dr. Mueller's testimony, if credited by the fact-finder, could provide the substantial competent*fn9 evidence necessary for Claimant to meet her burden of proof on this issue. Because such findings are lacking, we are required to remand.

On remand, the fact-finder should be mindful of three points. Firstly, the fact that Claimant voluntarily moved to Oklahoma has no direct bearing on the issue of the recurrence of her injury. Claimant may still recover if she establishes that she suffered a loss of earning

[ 122 Pa. Commw. Page 582]

    power in either Oklahoma or Pennsylvania as a result of a recurrence of her injury.*fn10 Secondly, although Claimant originally alleged a recurrence of disability in May of 1981, that fact does not prevent Claimant from proving that she was disabled at a later date. Section 413 of the Act provides that

[a] referee . . . may, at any time, . . . reinstate . . . an original or supplemental agreement . . . upon petition filed by either party with the department, upon proof that the disability of an injured employe has increased, . . . [or] recurred . . . . Such . . . reinstatement . . . shall be made as of the date upon which it is shown that the disability of the injured employe has increased . . . [or] recurred . . . .

Finally, nothing in this opinion is intended to usurp the function of the fact-finder. While we have highlighted those portions of the testimony which may, if believed, support a finding of a recurrence of disability, and have specified that Claimant's medical evidence is competent as a matter of law, we do not pretend to have resolved any credibility issues, which are within the sole province of the fact-finder. See, e.g., Adamo v. Workmen's Compensation Appeal Board (Jameson Memorial Hospital), 87 Pa. Commonwealth Ct. 207, 486 A.2d 1065 (1985).

This case is remanded for findings in accordance with the foregoing opinion.

[ 122 Pa. Commw. Page 583]


And Now, this 11th day of January 1989, the order of the Workmen's Compensation Appeal Board in the above-captioned matter is hereby vacated and the case is remanded for further proceedings consistent with the foregoing opinion.

Jurisdiction relinquished.

Judge MacPhail did not participate in the decision in this case.


Vacated and remanded.

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