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KIRK v. L. BAUER (03/23/67)

decided: March 23, 1967.

KIRK, APPELLANT,
v.
L. BAUER, JR., INC.



Appeal from order of Court of Common Pleas No. 7 of Philadelphia County, Dec. T., 1965, No. 4646, in case of James Kirk v. L. Bauer, Jr., Inc. et al.

COUNSEL

Herbert H. Hadra, with him Maurice Friedman and Robert H. Arronson, for appellant.

Frederick W. Anton, III, with him Paul H. Ferguson and Earl Thomas Britt, for appellees.

Ervin, P. J., Wright, Montgomery, Jacobs, Hoffman, and Spaulding, JJ. (Watkins, J., absent). Opinion by Hoffman, J. Montgomery and Jacobs, JJ., concur in the result.

Author: Hoffman

[ 209 Pa. Super. Page 358]

On September 11, 1963, claimant James Kirk fell from atop a twelve-foot ladder while performing electrical construction work for defendant, L. Bauer, Jr.,

[ 209 Pa. Super. Page 359]

Inc. He sustained a compression fracture of the third lumbar vertebra, requiring more than six weeks' hospitalization.

Shortly thereafter, the insurance carrier and claimant entered into an agreement for total disability benefits. In accordance with its terms, Kirk received weekly payments of $47.50 until August of 1964. The employer then petitioned the Workmen's Compensation Board for modification of the agreement. The Board granted the petition and substantially reduced Kirk's award, finding that he was entitled to partial disability benefits only. The court below affirmed the Board's order and the claimant now appeals.

We hold that the Board's conclusion that claimant is only "partially disabled" is not supported by competent evidence and is erroneous as a matter of law. The judgment must therefore be reversed.

I

Both parties agree that, in this action, the employer bears the burden of proof that claimant's disability is no longer total. Lackman v. F. W. Woolworth Company, 205 Pa. Superior Ct. 129, 208 A.2d 33 (1965). To meet that burden, the employer offered the testimony of only one witness, Dr. William A. Tomasco, medical director of the clinic of the Pennsylvania Manufacturers' Association. Dr. Tomasco described claimant's injuries in some detail, concluding: "My evaluation was, because of some of the limitation of forward flexion and lateral flexion, and the presence of the healed compressed fracture, that he was not totally disabled, that he had a partial disability at that time." The witness estimated this disability at 40%.

The employer cannot rest on that testimony alone, however, for, as Mr. Justice Musmanno has observed, "A physician studying, on an anatomical chart, the

[ 209 Pa. Super. Page 360]

    malady of his patient . . . may well conclude that the subject is only partially disabled. That same doctor could, however, come to a different conclusion if he saw the patient in the depths of a coal mine laden with heavy equipment. . . ." ...


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