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PELLEGRINO v. BALDWIN-LIMA-HAMILTON CORPORATION (04/13/72)

decided: April 13, 1972.

PELLEGRINO
v.
BALDWIN-LIMA-HAMILTON CORPORATION



Appeal from the Order of the Court of Common Pleas of Delaware County in case of Michael Pellegrino v. Baldwin-Lima-Hamilton Corporation, No. 5033, 1971.

COUNSEL

John W. Wellman, with him Fronfield, DeFuria and Petrikin, for appellant.

Jack A. Rounick, with him Emanuel A. Bertin and Moss, Rounick & Hurowitz, for appellee.

Judges Wilkinson, Jr., Mencer and Rogers, sitting as a panel of three. Opinion by Judge Mencer.

Author: Mencer

[ 5 Pa. Commw. Page 152]

This appeal is from an order of the Court of Common Pleas of Delaware County affirming an order of the Workmen's Compensation Board in dismissing the termination petition of Baldwin-Lima-Hamilton Corporation (Baldwin). Michael Pellegrino (claimant), while in the regular course of his employment with Baldwin, sustained a compensable injury to his back on June 13, 1963. On June 24, 1963, the parties to this lawsuit entered into an open compensation agreement. Baldwin, on April 4, 1968, petitioned for termination of compensation under the agreement, asserting that claimant's original disability had terminated on January 10, 1966, and that any existing disability was a consequence of an automobile accident which occurred on February 11, 1966.

The Referee dismissed Baldwin's termination petition but found as a finding of fact that claimant was paid compensation from June 13, 1963 to January 5, 1966. Both parties appealed from the Referee's decision. The Board likewise dismissed Baldwin's termination petition but its order provided for payment to claimant from June 13, 1963.

Baldwin initiated proceedings to terminate compensation payments being made to claimant under an agreement and accordingly the burden of proof is upon Baldwin to show that claimant is no longer entitled to such payments. Desiderio v. Penn Fruit Co., Inc., 207 Pa. Superior Ct. 468, 218 A.2d 602 (1966). Also, Baldwin has the burden of proving that claimant's disability from the accident has ceased. Verna v. Stabler, 204 Pa. Superior Ct. 87, 203 A.2d 578 (1964).

Where, as here, the decision of the Board is against the party having the burden of proof, the question on appellate review is whether the findings of the Board are consistent with each other and with its conclusions of

[ 5 Pa. Commw. Page 153]

    law and its order and can be sustained without a capricious disregard of competent evidence. Doheny v. City Stores, 201 Pa. Superior Ct. 566, 193 A.2d 650 (1963); Frombach v. United States Steel Corp., 2 Pa. Commonwealth Ct. 556, 279 A.2d 779 (1971).

After a careful review of the entire record, we are satisfied that Baldwin failed to meet its burden of proof in this case. There is competent testimony to support (1) the determination that claimant's injuries and disability continued from June 13, 1963 to the time of the Board's order of January 27, 1971 and (2) that the injuries suffered in the automobile accident of February 11, 1966, only aggravated his pre-existing condition. Baldwin did not offer ...


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