Appeal from judgment of Court of Common Pleas No. 3 of Philadelphia County, March T., 1964, No. 4935, in case of Anna M. Lackman v. F. W. Woolworth Company et al.
Joseph J. Murphy, with him Murphy & Senesky, for appellants.
Charles F. Quinn, with him Sheer, McDevitt & Mazzocone, for appellee.
Wright, Woodside, Watkins, Montgomery, and Flood, JJ. (Rhodes, P. J., and Ervin, J., absent). Opinion by Watkins, J. Ervin, P. J., took no part in the consideration or decision of this case.
[ 205 Pa. Super. Page 131]
This is an appeal in a workmen's compensation case from the judgment of the Court of Common Pleas No. 3 of Philadelphia County, in favor of the claimant-appellee, Anna M. Lackman, and against F. W. Woolworth Company and Travelers Insurance Company, defendants-appellants, for compensation benefits, entered on an order affirming the opinion of the Workmen's Compensation Board dismissing a petition to terminate.
The claimant was accidentally injured on April 27, 1960 in the course of her employment as a saleslady for the defendant, F. W. Woolworth Company. The parties executed an open compensation agreement which provided for compensation for total disability at the rate of $28.17 per week beginning May 5, 1960. The agreement described the accident and injury as follows: "Coming back on floor from stock room and slipped on floor going around department of baby goods counter. Fell on right thigh and buttocks and was badly bruised. Hematoma right hip and sciatica neuritis."
Compensation was paid under the agreement to October 3, 1960. The defendant filed a petition to terminate on January 9, 1961 alleging that all disability had ceased on or before October 3, 1960. After hearing, the referee dismissed the petition and continued
[ 205 Pa. Super. Page 132]
compensation for total disability. The defendant appealed and the Board remanded the case to the referee for an examination of the claimant by an impartial physician. The referee, after another hearing, at which time the testimony of the impartial physician was taken, again found the claimant to be totally disabled and dismissed the petition. The board, on appeal, affirmed the referee.
The question raised by this appeal is simply whether under the law, the record of the case supports the determination of the Workmen's Compensation Board that the claimant is totally disabled. As the employer, by the execution of the open agreement, acknowledged that the claimant was totally disabled, it is the burden of the employer to prove by unequivocal testimony that the permanent disability has in fact terminated. "Total disability is presumed to continue unless and until competent examination and testimony discloses otherwise. The burden of proving that claimant's disability had ceased altogether or had become partial was upon the employer." Fox v. American News Co., 190 Pa. Superior Ct. 74, 77, 151 A.2d 670 (1959). See also: Fehr v. Y.M.C.A., Pottsville, 201 Pa. Superior Ct. 107, 192 A.2d 143 (1963). Since the board determined that the employer failed to meet this burden, the question then arises whether the board's findings of fact are consistent with each other, with its conclusions of law and with its order, and whether there was a capricious disregard of the competent evidence. Muenz v. Kelso Beach Imp. Ass'n., 181 Pa. Superior Ct. 105, 124 A.2d 153 (1956).
"This Court has held that the term total disability in a workmen's compensation case means a total loss of earning power, and that the determination of that fact requires a consideration of economical as well as physical findings. Such factors as the ...