Carmen Paliotta General Construction & Federal Insurance v. Workmen's Compensation Appeal Board

Opinion by Judge Palladino, Adolfo Tribuzio (Claimant) appeals a decision of the Workmens Compensation Appeal Board which affirmed a referees determination that his work related disability had ceased on July 19, 1983. In addition, Carmen Paliotta Construction Company (Employer), appeals the Boards modification of the referees decision from termination to suspension of benefits. For the reasons set forth below, we affirm. On October 7, 1982, Claimant began receiving benefits for a compensable injury he sustained on September 17, 1982 when a wheelbarrow struck the anteri- or part of his lower leg, causing an ulcer to form at the trauma-site. On November 28, 1983, Employer filed a petition for termination averring that Claimants disability had ceased on September 27, 1983. — 145 — At the hearing, both Claimant and Employer presented the depositions and medical reports of their respective examining physicians. Employers physician, Dr. Robert F. Quinlin, examined Claimant on five separate occasions, the first shortly after Claimants work injury and the last on July 19, 1983. He testified that Claimant suffered from a pre-existing condition known as chronic venous insufficiency of his lower extremities. This condition essentially means that there is an inadequate return of blood to the heart through the veins. Dr. Quinlin stated that when the wheelbarrow struck Claimants leg, an ulcer formed at the point of impact causing Claimants disability, and that due to the venous insufficiency, the ulcer took longer than normal to heal. Dr. Quinlin further testified that when he examined Claimant in March of 1983, the wound had completely healed. Moreover, when asked whether as of his examination on July 19, 1983, Claimant had recovered from the injuries sustained in the wheelbarrow incident, Dr. Quinlin stated:1 I feel that he should return to work. I felt that he was able to return to work based on my physical examination, which failed to uncover any significant findings that ought to keep him away from work. ... I was concerned about the degree of pain that he was complaining of but could not support that degree of pain based on his physical findings. Based on my examination, I felt that he probably should return to work. Finally, in a letter dated September 12, 1983,2 Dr. Quinlin further elaborated on his position regarding Claimant: — 146 — We seem to be having difficulty communicating to Mr. Tribuzio that he is going to have to live with his chronic venous insufficiency and the discomforts that go along with this rather significant problem. I do not think it is realistic to think that Mr. Tribuzio will ever be pain-free, but at the same time this should not be a major impediment to his returning to work. . . . Mr. Tribuzio s traumatic injury which occurred almost one year ago now has little to do with his disability. The referee found that Claimants disability resulting from the wheelbarrow incident ceased on July 19, 1983 when the ulcer had completely healed and he was able to resume his regular work without a loss of earning power. As a result, the referee terminated benefits. The Board, without taking any additional testimony, adopted the referees findings regarding the fact that Claimants disability had ceased. However, because of the evidence “regarding lingering and continuing pain, and regarding future susceptibility to episodes of recurrence of ulceration,”3 the Board modified the referees decision to a suspension of benefits rather than termination. Claimant contends that the referee erred as a matter of law in terminating his benefits or that the findings of fact are not supported by substantial evidence. Employer appeals the Boards modification. In a proceeding to suspend or terminate workmens compensation benefits, an employer has the burden of showing that the employes disability has ended or been reduced and that the employe is capable of returning to work. Bush v. Workmen's Compensation Appeal Board, 63 Pa. Commonwealth Ct. 289, 438 A.2d 660 (1981). — 147 — Thus, the initial issue is whether the testimony of Dr. Quinlin is unequivocal and therefore constitutes substantial evidence to support the referees determination that Claimants disability had ceased, such issue being a question of law for review4 by this Court. Lewis v. Workmen's Compensation Appeal Board, 508 Pa. 360, 498 A.2d 800 (1985). In the case at bar, the referee found that Claimants disability stemmed from the ulceration of his leg because of the wheelbarrow incident at work on September 19, 1982 and that the slow healing process of the ulcer resulted from Claimants pre-existing chronic venous insufficiency. Finally, the referee found that: “All of claimants disability resulting from said injury terminated on July 19, 1983, when said ulcer completely healed and he was able to resume his regular work without a loss of earning power.”5 As stated above, Dr. Quinlin testified that as of his examination in March of 1983, the ulcer had completely healed and that when he examined Claimant on July 19, 1983, he could find no medical explanation for Claimants complaints of pain other than that which goes along with Claimants venous insufficiency condition. In his opinion, the doctor concluded, Claimant was able to return to his work. The referee accepted and relied upon Dr. Quinlins testimony in finding that the Employer had sustained his burden of proof. Such credibility determinations are within the province of the referee. Yockey v. Workmen's Compensation Appeal Board, 79 Pa. Commonwealth Ct. 250, 468 A.2d 1199 (1983). By a reading of the rec — 148 — ord, it is apparent that Dr. Quinlins testimony unequivocally establishes that as of July 19, 1983, Claimants disability resulting from the wheelbarrow incident had ceased. Claimant asserts that he presented uncontradicted medical testimony that, at some point later than Dr. Quinlins last examination, his ulcer reopened causing recurrence of his disability. Therefore, Claimant argues, the referees determination was not supported by substantial evidence. We disagree. The referee, expressly relying on Dr. Quinlins unequivocal testimony, determined that Claimants disability had ceased as of July 19, 1983, the date of Dr. Quinlins last examination. Thus, the fact that Claimant may have suffered a later recurrence of his disability has no bearing on the referees conclusion that Claimants disability had ceased as of that date. This brings us to Employers cross appeal. The Board, upon review of the referees decision, concluded that Dr. Quinlins testimony established that episodes of recurring ulceration were likely. Therefore, the Board modified the referees determination from termination of benefits to suspension. Employer contends that the Boards modification constitutes reversible error. Review of Employers contention requires a two-pronged analysis. The first issue is whether the Board has authority to issue its modification; the second is whether, as a matter of law, the Board properly decided to suspend rather than terminate Claimants benefits. Section 424 of the Act, 77 P.S. §855 requires the Board to grant a hearing whenever an appeal shall be based upon an alleged error of law. This section then states: “As soon as may be after such hearing, the board shall either sustain or reverse the referees award or dis-allowance of compensation, or make such modification — 149 — thereof as it shall deem proper” 77 P.S. §855 (emphasis added). While findings of (act and credibility determinations are entirely within the province of the referee,6 Section 424 demonstrates the clear intent of the legislature to vest in the Board the final authority to make conclusions of law which are then subject to appeal to this court. Whether the facts found by a referee are sufficient to establish that the Employer has met his burden of proof in a termination or suspension proceeding are conclusions of law. Thus the Board is acting within its statutory authority in modifying a referees decision regarding termination or suspension of benefits. Having concluded that the Board has authority to modify a referees conclusions of law, we must now determine whether the Board properly held that, based on the factual determinations of the referee, Claimants benefits should be suspended rather than terminated. The Pennsylvania Workmens Compensation Act does not specifically define the alternative criteria necessary to establish grounds for termination vis-a-vis suspension of benefits. However, Section 413 of the Act, as amended, 77 P.S. §772 states: A referee designated by the department may, at any time, modify, reinstate, suspend, or terminate a notice of compensation payable, an original or supplemental agreement or an award of the department, upon proof that the disability of an injured employe has increased, decreased, — 150 — recurred, or has temporarily or finally ceased, or that the status of any dependent has changed. . . . (Emphasis added.) It seems clear that, as a matter of statutory construction, a referees award may be modified by proof of increased or decreased disability, reinstated by proof of recurrence, or, more significantly, suspended or terminated depending on proof of temporary or final cessation of the compensable disability. Therefore, whether or not a claimants disability benefits are to be terminated or suspended upon proof by the party filing a petition under Section 413 depends upon whether the facts as determined by the referee establish that the disability has temporarily or permanently ceased. In the case at bar, the referee expressly stated that the Employers medical evidence (Dr. Quinlins testimony) was accepted and relied upon in finding that Claimants disability had ceased. The Board relied on Dr. Quinlins testimony in concluding that the referee should have awarded suspension rather than termination. Since Dr. Quinlins testimony evidences the likelihood of future susceptibility to recurrence of ulceration (bolstered by the uncontradicted testimony of Claimants physician that the ulcer had, in fact, reopened), we conclude that the Board was correct in its determination that the cessation of Claimants disability warranted suspension of benefits rather than termination. This conclusion best serves the remedial intent of the Act. As we stated in United States Steel Corporation v. Workmen's Compensation Appeal Board (Airgood), 62 Pa. Commonwealth Ct. 502, 506, 437 A.2d 92, 94 (1981): The purpose of workmens compensation is to provide benefits to employees who suffer work-related injuries resulting in a loss of earnings. If an employee does not incur an immediate wage — 151 — loss for an observable physical disability, the protections granted by the Act can only be achieved by issuing a suspension order, which allows the employee up to 500 weeks in which to monitor the course of his disability. Accordingly, the decision of the Board is affirmed. Order And Now, June 26, 1987, the decision of the Workmens Compensation Appeal Board in the above-captioned matter is affirmed. Footnotes [1] Deposition of Robert F. Quinlin, M.D. at 11-12, R.R. at 76a-77a. [2] Letter of Robert F. Quinlin, M.D. to Palma Kokowski, R.N. of Champion Claim Service dated September 12, 1983, R.R. at 101a-102a. [3] Opinion of the Workmens Compensation Appeal Board, R.R. at 194a. [4] Our scope of review is whether there has been a violation of constitutional right, error of law, or whether necessary facts are supported by substantial evidence. Estate of McGovern v. State Employees’ Retirement Board, 512 Pa. 377, 517 A.2d 523 (1986). [5] Referees finding of feet # 7, R.R. at 181a. [6] By Amendment in 1972, the Pennsylvania Legislature placed the role of factfinder and arbiter of credibility exclusively on the referee and not the Board. See Peak v. Unemployment Compensation Board of Review, 509 Pa. 267, 501 A.2d 1383 (1985); Universal Cyclops Steel Corporation v. Workmen's Compensation Appeal Board (Krawczynski), 9 Pa. Commonwealth Ct. 176, 305 A.2d 757 (1983).