Appeal from the Order of the Workmen's Compensation Appeal Board in case of Russell F. Keith v. Hiram Wible & Son and Pennsylvania National Mutual Casualty Insurance Company, Insurance Carrier, No. A-64807.
M. B. DeForrest, with him DeForrest & Myers, for appellants.
Swirles L. Himes, with him Himes & Himes, for appellee.
Judges Crumlish, Jr., Wilkinson, Jr., and Mencer, sitting as a panel of three. Opinion by Judge Mencer.
Russell F. Keith (claimant) was injured in a truck accident on July 24, 1967, while he was employed as a truck driver by the appellant-employer, Hiram Wible & Son.
A compensation agreement was executed for total disability beginning July 25, 1967. That agreement stated: "Claimant lost control of truck and collided into a tractor-trailer unit going the opposite direction. He suffered fracture of the tenth rib on the left side and an acceleration injury of the neck." He also received a concussion which left him unconscious for about eight hours following the accident.
On January 23, 1969, a Supplemental Agreement was executed setting forth that as of October 19, 1968, the claimant was 50% disabled. Compensation payments of $42.00 per week were made in accordance with this agreement from October 19, 1968, through April 7, 1969. On June 24, 1969, the appellant insurance carrier
filed a Petition for Termination alleging that a medical examination of March 28, 1969, indicated that the claimant was only 5% disabled.
At the hearing on this petition before the Referee on March 26, 1970, Dr. John F. Whitehill, the sole medical witness, testified for the insurance carrier that the claimant's disability was 5%. However, in the words of the Board, "he did not spread upon the record the medical details from which he deduced that the disability had reduced to 5%. In fact, Dr. Whitehill vacillated somewhat and suggested that claimant try to do his former work, but he thought that he might not be able to do it. The doctor also suggested that claimant not resume heavy lifting because he might impede his neck problem. This single witness for the carrier's position to reduce compensation did not measure up to the standard required to reduce compensation. . . . The testimony of the carrier's medical witness is too desultory and indefinite."
On September 2, 1971, the Referee denied the insurance carrier's petition and found that the claimant's 50% partial disability continued. The employer appealed to the Workmen's Compensation (Appeal) Board (Board) alleging that the testimony did not support the findings of the Referee. The Board, on May 25, 1972, dismissed the appeal, and this appeal followed. Our review is limited to whether constitutional rights were violated, an error of law was committed, or any necessary finding of fact was not supported by substantial evidence. Nash v. Sandnes' Sons, Inc., 6 Pa. Commonwealth Ct. 403, 295 A.2d 615 (1972).
Where an employer files a Petition for Termination or Modification of the compensation agreement, the employer has the burden of proving that claimant's disability has ceased altogether or has changed. ...