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DOHENY v. CITY STORES ET AL. (09/12/63)

September 12, 1963

DOHENY
v.
CITY STORES ET AL., APPELLANTS.



Appeal, No. 93, Oct. T., 1963, from order of Court of Common Pleas of Delaware County, Dec. T., 1961, No. 259, in case of Dorothy Doheny v. City Stores (Division, Lit Bros.) et al. Order affirmed.

COUNSEL

Raymond J. Porreca, with him Robert W. Beatty, and Butler, Beatty, Greer & Johnson, for appellants.

Charles J. Hepburn, Jr., for appellee.

Before Rhodes, P.j., Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ.

Author: Watkins

[ 201 Pa. Super. Page 567]

OPINION BY WATKINS, J.

This is a workmen's compensation case in which the Court of Common Pleas of Delaware County dismissed the appeal of the employer, City Stores, and its insurance carrier, New Amsterdam Casualty Company, the appellants, from the decision of the Workmen's Compensation Board denying a petition to terminate a workmen's compensation agreement entered into between the employer and Dorothy Doheny, the appellee.

An open agreement was executed by the employer and employee for total disability for accidental injuries

[ 201 Pa. Super. Page 568]

    received by her on August 29, 1955, when she was working as a saleswoman in the store's shoe department. She was injured when she climbed on a shelf, slipped and fell, striking her head on the edge of the shelf and suffered headache and concussion. The agreement stated, "mild cerebral concussion", but the referee modified this in his findings of fact based on medical testimony to be, "a basilar fracture of the skull with cerebrospinal rhinorrhea".

Compensation was paid under the agreement from September 6, 1955 to March 31, 1959 based upon an agreed wage of $56.55 per week at the rate of $32.50 weekly for a period of 186 weeks or a total amount of $6045.

On April 15, 1959, the appellants filed a petition to terminate the agreement as of April 1, 1959, upon the ground that disability had ceased. After hearing, the referee found as a fact that her conditions "have produced severe headaches, sudden falling, blurring vision and lack of sensation to touch on the right side. The persistence of these conditions indicate permanent impairment and render the claimant an hazardous employable risk, such as makes her a nondescript in the employment field", and dismissed the petition to terminate. The board affirmed the referee on appeal.

The burden is on the petitioner to prove a change in disability or that it has terminated entirely. A claimant for compensation must prove all essential facts by a preponderance of the competent testimony but that rule does not apply to the claimant where the employer desires to terminate an agreement. It is the employer that has the burden of proving the ...


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