Butchock v. Workmen's Compensation Appeal Board

NARICK, Senior Judge. Andrew Butchock (Claimant) petitions for review of an order of the Workmen’s Compensation Appeal Board (Board) that affirmed a referee’s denial of Claimant’s modification petition which sought change from an award of partial disability to one of total disability. We affirm. Claimant, a coal miner, left the employ of U.S. Steel Mining Company, Inc. (Employer) in 1979. In 1982, Claimant filed a claim petition alleging that he contracted coal workers’ pneumoconiosis which precluded him from returning to work or any similar type of employment. On February 3, 1983, a referee awarded Claimant partial disability benefits, as a result of his disease, for a period of five hundred weeks. That referee found Claimant totally and permanently disabled from performing work in the mines or any heavy work, but did find Claimant could perform sedentary work in a dust free environment. On March 6, 1992, Claimant filed a modification petition alleging change in his disability due to coal workers pneumoconiosis from one of partial disability to one of total disability as of January 9, 1992. The referee dismissed Claimant’s modification petition as Claimant failed to meet the necessary burden of proof. The referee found that Claimant was unable to prove the inability of performing even sedentary work in a dust free environment. In reaching this conclusion, the referee considered the testimony of two physicians,1 who both agreed to Claimant’s ability to continue [905] to work in a sedentary dust free environment.2 The Board affirmed holding that the referee’s decision was based upon substantial evidence.3 The Board cited Claimant’s failure to prove that he could no longer perform the light duty work which made his partial disability award proper. On appeal before this Court,4 Claimant argues that the referee misapplied the law concerning modifications of benefits. Claimant asserts that he is entitled to benefits, in essence, because Employer failed to show the availability of light sedentary work for Claimant. We disagree. The referee made the determination that Claimant failed to prove that he was “totally disabled” as defined by The Pennsylvania Workmen’s Compensation Act (Act), Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1-1031, and accompanying case law which interprets the Act. The Supreme Court of Pennsylvania in Dillon v. Workmen’s Compensation Appeal Board (Greenwich Collieries), 536 Pa. 490, 640 A.2d 386 (1994), has recently addressed this issue.5 The Court refined the burden of proof which must be sustained in order to change an award from partial disability to total disability or vice versa. The Court noted that “disability” has been incorrectly interpreted to require the movant to show a “change in physical condition” in order to meet their burden of proof. The Court emphasized that the determination instead involves how the worker’s injury affects his overall earning power and not simply whether the injury has worsened.6 The Court additionally noted: Inasmuch as both capacity to work and availability of work affect the extent of an injured employee’s disability (loss of earning power), it follows that disability, for compensation purposes, may change from partial to total or vice versa based on a change in one with or without a change in the other. Dillon, at -, 640 A.2d at 392. Thus, the Court in Dillon concluded that the claimant, as the party seeking the modification, must prove that he was unable to attain any work within his physical limitations which were caused by his work-related injury. As the Board found, in this case, Claimant was not able to show work unavailability and was, therefore, correctly denied his petition. The referee found that Claimant was still able to perform sedentary work within a dust free atmosphere. In doing so, the referee rqlied upon the testimony of two physicians who concluded that Claimant was able to perform work in such an environment.7 This Court has continually upheld the referee’s broad discretion in considering evi [906] dence. If the Board takes no additional evidence, the referee is the final arbiter of the credibility and weight of the evidence. Volkswagen of America v. Workmen’s Compensation Appeal Board (Russell), 143 Pa.Commonwealth Ct. 69, 598 A.2d 602 (1991). This Court has also held that the referee may disregard the testimony of any witness even though that testimony is uncon-tradicted. Id. Our review of the record reveals that substantial evidence exists to show that Claimant did not meet his burden of proof. We, therefore, will not disturb this decision.8 Accordingly, we affirm. SMITH, J., concurs in the result only. ORDER AND NOW, this 11th day of July, 1994, the order of the Workmen’s Compensation Appeal Board in the above-captioned matter is hereby affirmed. Footnotes [1] Jerome Lebovitz, M.D., a witness for Claimant, and Michael Bennett, M.D., a witness for Employer. [2] Additionally, Dr. Bennett testified that Claimant did not have a respiratory impairment and could do almost any type of work. [3] Substantial evidence is such relevant evidence that a reasonable mind might accept as adequate to support a conclusion. Republic Steel Corp. v. Workmen’s Compensation Appeal Board (Shinsky), 492 Pa. 1, 421 A.2d 1060 (1980). [4] Our scope of review is limited to determining whether an error of law has been committed, findings of fact are supported by substantial evidence or constitutional rights have been violated. Section 704 of the Administrative Agency Law, 2 Pa.C.S. § 704. [5] The claimant in Dillon, as in this case, sought to modify an award of compensation for partial disability to one for total disability. [6] See also Kachinski v. Workmen's Compensation Appeal Board (Vepco Construction Co.), 516 Pa. 240, 532 A.2d 374 (1987). [7] The referee’s Finding of Fact 7 states: I have carefully considered all the evidence of record both medical and lay and find as a fact that the claimant has not shown that his coal workers pneumoconiosis has progressed to the point that he cannot even perform sedentary work in a dust free environment. Referee Luich, in awarding the claimant's partial disability benefits, found that the claimant could perform sedentary work in a dust free environment. Dr. Lebovitz when asked by defense counsel as to whether or not the claimant could continue to perform sedentary work in a dust free environment, agreed that the claimant could perform such work as long as said work was done in a dust free environment. Dr. Bennett did not feel that the claimant had a respiratory impairment and felt that the claimant could do almost any type of work. [8] Employer, in its argument before this Court, has curiously combined the substantial evidence standard with that of the capricious disregard of the evidence standard. As this Court has repeatedly ruled, the capricious disregard of competent evidence standard is applied only where the burdened party is the only party to present evidence and does not prevail. Kirkwood v. Unemployment Compensation Board of Review, 106 Pa.Commonwealth Ct. 92, 525 A.2d 841 (1987). As both parties submitted evidence before the referee, the application of the capricious disregard of the evidence standard would be improper.