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FALK'S FOOD BASKET v. TRANSUE (05/11/73)

decided: May 11, 1973.

FALK'S FOOD BASKET, ET AL.
v.
TRANSUE, ET AL.



Appeal from the Order of the Workmen's Compensation Appeal Board in case of Robert Transue v. Falk's Food Basket and Pennsylvania Manufacturers' Association Insurance Company, Insurance Carrier, No. A-65246.

COUNSEL

A. Albert Gross, with him Gross, Herster & Newton, for appellants.

Raymond J. DeRaymond, with him Theodore R. Lewis and Coffin, DeRaymond and Shipman, for appellees.

President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Opinion by Judge Crumlish, Jr.

Author: Crumlish

[ 8 Pa. Commw. Page 616]

This is an appeal from an order of the Workmen's Compensation Appeal Board dismissing appellants' petition to terminate a compensation agreement.

In June of 1967 claimant, Robert Transue, fell in the course of his employment at Falk's Food Basket and suffered severe injuries to both legs. At that time and for the period continuing to the present, claimant was the owner, along with his wife, of an operating restaurant and bar. In July of 1967 a compensation agreement was entered into and approved by the Workmen's Compensation Appeal Board under which claimant was to receive compensation for total disability. On October 30, 1968 the employer and its carrier filed a petition for modification and, after hearing, the referee directed that compensation be paid on the basis of 40% partial disability.*fn1

On April 5, 1971 employer filed a petition to terminate the compensation agreement on the grounds that disability had ceased and claimant had suffered no loss of earning power since March 8, 1971. After a hearing, the referee granted the petition to terminate and suspended compensation. The referee found that the claimant was still 30% disabled but was able to work approximately eight hours per day in a job not requiring constant ambulation and there was no loss of earnings because he was engaged as an active partner of a going business.

The Board, having reviewed the record and the findings of the referee, vacated the referee's decision and dismissed the petition to terminate. The Board concluded that the referee's finding as to claimant's ability to work was meaningless since there was no evidence

[ 8 Pa. Commw. Page 617]

    as to claimant's work experience, his education, and whether such jobs are available. The Board further concluded that claimant's ownership of the bar and the restaurant was also meaningless since the only proof in the case showed that the bar was not making money. We must affirm.

Our function here is to determine whether the Board has capriciously disregarded evidence in reaching its decision or whether the Board's findings are consistent with each other and with its legal conclusions. Connolly v. Campbell, 8 Pa. Commonwealth Ct. 99, 301 A.2d 109 (1973); Billet v. Keystone Roofing Mfg. Co., 6 Pa. Commonwealth Ct. 23, 291 A.2d 921 (1972).

There is no question that the employer and its carrier, being the moving parties in this petition, have the burden of establishing the allegations upon which they rely. Verna v. Stabler, 204 Pa. Superior Ct. 87, 203 A.2d 578 (1964); Crain v. Small Tube Products, Inc., 200 Pa. Superior Ct. 426, 188 A.2d 766 (1963). Here, appellants allege that (1) claimant's disability has ...


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