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EAST WEST EQUIPMENT COMPANY v. WORKMEN'S COMPENSATION APPEAL BOARD (MONARCH CIRCUIT INDUSTRIES AND BARATS) (08/01/89)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: August 1, 1989.

EAST WEST EQUIPMENT COMPANY, PETITIONER,
v.
WORKMEN'S COMPENSATION APPEAL BOARD (MONARCH CIRCUIT INDUSTRIES AND BARATS), RESPONDENTS

PETITION FOR REVIEW (WORKMEN'S COMPENSATION).

COUNSEL

Glenn D. Hains, Durben & Hains, P.C., Newtown, for petitioner.

Peter J. Weber, and Lynn G. Levy, Rawle & Henderson, Philadelphia, for Monarch Circuit Ind.

Thomas W. Harrigan, Stack & Gallagher, P.C., Philadelphia, for Delbert Barats.

Crumlish, Jr., President Judge, and Colins, J., and Narick, Senior Judge.

Author: Crumlish

[ 128 Pa. Commw. Page 20]

OPINION

East West Equipment Company (East West) appeals a Workmen's Compensation Appeal Board order affirming the referee's decision and denying its petition to terminate benefits to Delbert Barats. We reverse and remand.

In January 1978, Barats suffered a back injury while working for East West and received benefits. He subsequently returned to light-duty work for another employer, Monarch Circuit Industries, Inc. (Monarch), and again sustained a back injury in July 1980. Monarch executed a notice of compensation payable for this latter injury. Both employers subsequently filed termination petitions which were consolidated for disposition.*fn1 The referee originally denied both termination petitions and apportioned liability for Barats' post-July 1980 disability equally between East West and Monarch.

[ 128 Pa. Commw. Page 21]

The Board reversed the referee's decision and, on remand, the referee determined that the July 1980 injury constituted a recurrence of the January 1978 injury and deemed East West solely responsible. The Board then affirmed and additionally disposed of Monarch's petition by denying its termination petition but granting a suspension of its obligation to pay benefits.

East West initially contends that the referee's finding on remand that Barats sustained a recurrence of his January 1978 back injury is unsupported by the record. East West maintains that Dr. Thomas Javian, Jr., whose testimony the referee credited in its entirety, consistently opined that Barats' post-July 1980 disability was caused by both work injuries. East West further argues that the referee was precluded from finding a recurrence of the first injury once he found that a second injury had occurred for which Monarch had executed a notice of compensation payable. Monarch counters that the Board correctly denied East West's termination petition but erred in relying on Dr. Javian's equivocal testimony as to causation and erroneously denied its termination petition.

A party seeking to terminate workmen's compensation benefits bears the burden of proving either that the work-related disability has ceased or that the continued disability is the result of an independent cause. McGee v. L.F. Grammes & Sons, 477 Pa. 143, 383 A.2d 864 (1978). In this dispute between former and current employers, East West attempted to show that Barats' post-July 1980 disability was an "aggravation" of his prior injury, thus imposing liability on Monarch, the employer at the time the aggravation occurred, Bud Smail Lincoln Mercury v. Workmen's Compensation Appeal Board, 59 Pa. Commonwealth Ct. 638, 430 A.2d 719 (1981). Conversely, Monarch presented evidence that Barats suffered a "recurrence" of disability making East West liable. Lackawanna Refuse v. Workmen's Compensation Appeal Board (Christiano), 74 Pa. Commonwealth Ct. 286, 459 A.2d 899 (1983). This issue is ordinarily a question of fact to be determined by the referee,

[ 128 Pa. Commw. Page 22]

    the degree of contribution each injury had to Barats' present disability. Medical science is not so advanced as to permit such an exact measurement of causation in every case, particularly in light of the amorphous and chronic nature of back disability.

While Dr. Javian's testimony constitutes competent testimony, it does not support the referee's initial decision equally apportioning liability.*fn2 Nor does Dr. Javian's testimony support the termination petitions filed by the respective employers. Therefore, because Monarch accepted liability for Barats' post-July 1980 disability by executing a notice of compensation payable, it remains liable for full disability benefits. See Beissel v. Workmen's Compensation Appeal Board (John Wanamaker, Inc.), 502 Pa. 178, 465 A.2d 969 (1983) (filing notice of compensation payable after investigating cause of disability constitutes admission of employer's liability); Crucible Steel Co. of America v. Skwarko, 9 Pa. Commonwealth Ct. 269, 306 A.2d 395 (1973).

We also conclude that East West has failed to sustain its burden of proving that disability attributable to Barats' January 1978 injury ceased. Moreover, Barats has demonstrated that the reasons for the benefits suspension following his return to work no longer exist; that is, residual disability from the 1978 back injury has again manifested itself in a loss of earning power. Andersen v. Workmen's Compensation Appeal Board (National Forge Co.), 113 Pa. Commonwealth Ct. 601, 537 A.2d 971 (1988).

[ 128 Pa. Commw. Page 24]

However, because this proceeding was initiated by the respective employers, and neither employer has sustained its burden of proof, we hold that the referee and the Board erred in changing the status quo at the time these termination proceedings were initiated. While we acknowledge the disincentive this decision might create for subsequent employers to promptly execute a compensation agreement after a previously injured employee becomes reinjured, we decline to fashion a remedy not encompassed by the Workmen's Compensation Act. We cannot approve a finding that East West is solely liable where, as here, the medical evidence indicates dual causation and the subsequent employer has accepted liability immediately after the latter injury.

Accordingly, we reverse the decision of the Board and remand for entry of the appropriate order imposing liability for Barats' post-July 1980 disability on Monarch.

Order

The Workmen's Compensation Appeal Board order, No. A-93268 dated September 13, 1988, is reversed and this case is remanded in accordance with the preceding opinion.

Jurisdiction relinquished.

Disposition

Accordingly, we reverse the decision of the Board and remand for entry of the appropriate order imposing liability for Barats' post-July 1980 disability on Monarch.


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