OPINION BY MR. JUSTICE EAGEN, October 3, 1968:
This case has a long and rather confused history which will be simplified in order to quickly frame the question raised on this appeal.
Michael P. Barrett (hereinafter the Claimant) petitioned the Workmen's Compensation Board (hereinafter Board) for an award in accordance with the provisions of The Pennsylvania Workmen's Compensation Act, the Act of June 2, 1915, P.L. 736, 77 P.S. § 1 et seq., alleging that he had incurred a disability as the result of an accident which occurred in the course of his employment for Otis Elevator Company (hereinafter the Employer). After considering the conflicting testimony of four medical doctors, the Board found that the claimant was totally disabled from December 8, 1961, to March 10, 1962, and 40 per cent disabled for an indefinite period thereafter. The claimant excepted to the Board's finding that his disability was only partial after March 10, 1962, and he appealed to the Court of Common Pleas of Lackawanna County. On remand from that court, the Board clarified and reaffirmed its finding and the claimant again appealed. The Court of Common Pleas of Lackawanna County dismissed the appeal on the ground that the challenged finding does not capriciously disregard competent evidence. The Superior Court affirmed per curiam, without opinion. This Court then granted allocatur. On September 26, 1967, we filed an opinion affirming the lower courts. Thereafter, we granted a petition for reargument to reconsider the question of whether or
The claimant's first objection to the Board's finding that he is only partially disabled is that the finding is based on the testimony of a medical doctor that fails to place the claimant's physical impairment in the context necessary to relate the accidental injury to a loss of earning power
Although the medical testimony in this case, as in Kirk, may not have been competent, this defect could not be a ground for reversal given the limited nature of our appellate review. Courts do have the power to determine whether or not the Board's findings of fact are supported by competent evidence. Vorbnoff v. Mesta Machine Co., 286 Pa. 199, 205-06, 133 A. 256,
The flaw in claimant's argument is that it confuses two different standards of appellate review. Claimant argues that the Board's finding that he is only partially disabled capriciously disregards competent evidence
It is unnecessary to analyze the record in detail to determine whether or not the Board's finding capriciously disregards competent evidence because the claimant's second argument, that the finding is erroneous as a matter of law, is meritorious.
The claimant notes that in Petrone v. Moffat Coal Co., supra, the Board's finding that the claimant was partially disabled because he could do "light work of a general nature," which the Board presumed was
Simply stated, the issue between the parties is whether or not the decision in Petrone, which puts on the employer the burden of proving availability of light work of a general nature to a claimant who can do only such work, should be narrowly limited or should be extended to place the burden on the employer of proving the availability of any type of work to an injured employee. To intelligently resolve this issue, the fact to be proven must be closely analyzed with reference to the considerations which underlie the apportionment of burden of proof. Unfortunately, neither party has assisted the Court in this analysis, so we are forced to rely on our own research and thinking.
If the existence or nonexistence of a fact can be demonstrated by one party to a controversy much more easily than by the other party, the burden of proof
Although the person from whom compensation is sought in the federal social security cases may well have easy access to employment information, it does not appear that the same is true in the typical state workmen's compensation case. With the rare exceptions of employment agencies and possibly very large industrial concerns which have employment offices, the person from whom compensation is sought in workmen's compensation cases has no more access to employment information than does the claimant. Consequently, this consideration appears to have no bearing
If experience indicates that a fact, the existence of which will affect the outcome of a controversy, exists only rarely, the burden of proof may be placed on the party who would wish to show the existence of the fact, if for no other reason than to expedite trial in the great number of cases when a suggestion that the facts exist would be frivolous.
Although the belief that light work of a selective nature (and possibly in this age of automation, light work of a general nature as well) is not readily obtainable, may be reasonably supportable with no data more scientific than the informal knowledge of the bench and bar, to conclude that no type of work is readily available to any worker with some physical
The burden of proof may be placed on the party who must prove the existence of a fact rather than on the party who must prove its nonexistence.
Frankly, the validity of the application of this consideration to the allocation of the burden of proving the availability or nonavailability of jobs to a disabled claimant is not clear. If for no other reason than the quantity of evidence, it certainly is more difficult to prove conclusively that no jobs are available than to prove conclusively that a job is available, but conclusive proof is not required on this issue. Given that a preponderance of the evidence is all that is required, the proof of a negative does not appear so difficult that
Nevertheless, if this consideration is pertinent, as many cases, including Petrone, suggest, it appears that it supports placing the burden of proof on the employer not only on the issue of the availability of light work of a general nature, but also on the issue of the availability of any type of work.
Even though the above consideration, conventionally used to determine on which party the burden of proof should rest, does not strongly weigh in favor of placing on one party or the other the burden of proof on the question of the availability of jobs to a claimant who can do work not limited to light work of a selective or general nature, other factors, not typical in the allocation of the burden of proof, convince us that the burden of proof on this question must be placed on the employer.
First, it is essential that whatever rule we adopt clearly indicate who bears the burden of proof, especially because this determines the scope of appellate review. There does not appear to be a "bright line" dividing light work of a general nature from work demanding more physical ability or training, as there was dividing light work of a general nature from light work of a selective nature, see Earley v. Philadelphia & Reading Coal & Iron Co., supra, the boundary line where the burden of proof, switched from employee to employer before the decision in Petrone. Although it might be possible to definitely fix the boundary between light work of a general nature and work requiring more physical ability and training, for instance in terms of categories used in United States Department of Labor, Selected Characteristics of Occupational Titles (Physical Demands, Working Conditions, Training Time), A Supplemental to the Dictionary of
Second, by placing the burden of proof on the employer in all cases, we may make more attractive agreements between employers and employees who suffer temporary total disability. To illustrate, assume that an employee is accidentally hurt in the course of his employment and will be totally disabled temporarily but is expected to recover partially or completely. If the employer agrees to pay total disability benefits, he later may have to petition the Board to reduce or terminate the payments and he will have the burden of proof on such a petition. If the employer does not agree to pay total disability benefits, the employee will have to petition the Board and he presently has the burden of proof. This disparity in the burdens of proof may operate to discourage employers from entering compensation agreements. By making the burden of proof uniform, we remove this disadvantage.
In summary, then, although the considerations which usually enter into a decision on whom should have the burden of proof do not conclusively indicate that the employer should have the burden of proving jobs are available to a disabled claimant who can do work not limited to light work of a general nature, we are convinced that Petrone cannot effectively be limited to placing the burden on the employer only when the claimant can do nothing but light work of a general
Reversed and remanded to the Workmen's Compensation Board for a hearing and findings in accordance with the burden of proof as now defined.
Mr. Justice ROBERTS concurs in the result.
DISSENTING OPINION BY MR. CHIEF JUSTICE BELL:
Notwithstanding the interesting ramblings by the majority in the field which used to be the legal field of Workmen's Compensation, but has now been changed by it to the field of human emotions and equities, it still ought to be the law in Workmen's Compensation cases, as it is in the field of trespass and in other fields of the law, that the person who has the burden of proof to sustain his claim has to produce competent and adequate evidence to sustain his claim. This has been and should continue to be the law, even though the opposite party is in a better position to possess or acquire the essential facts or the necessary knowledge. I would cast upon the claimant the burden of proving his claim to total or partial disability, and if the latter, further proof that employment for a person with his kind of partial disability is not available to him. Any other standard or requirement or burden is founded upon emotion and not law, and makes a travesty of the law.
For these reasons, I would affirm the Workmen's Compensation Board and the Superior Court.
DISSENTING OPINION BY MR. JUSTICE COHEN:
In the recently decided case of Petrone v. Moffat Coal Co., 427 Pa. 5, 233 A.2d 891 (1967), we determined
The instant case does not involve that situation, since here a definite determination was made by the Workmen's Compensation Board that the claimant was 40% disabled by a back injury suffered in an accident at work. The record discloses that an impartial physician appointed by the Board testified unequivocally that there was a disability percentage of 35 to 40 percent and that this disability was applicable to any type of work. The Board adopted 40% as its finding. Its action was affirmed by the Court of Common Pleas of Lackawanna County and the Superior Court.
The long established practice in Workmen's Compensation litigation heretofore accepted a percentage of disability without the requirement of additional proof. I would not change that practice.