Appeal from the Order of the Workmen's Compensation Appeal Board in case of Mary D. Thomas v. Tioga Textile Associates, Inc., No. A-66899.
Robert O. Beers, with him Anderson, Ports, May & Beers, for appellant.
Wilson H. Oldhouser, for appellee, Thomas.
Judges Crumlish, Jr., Mencer and Blatt, sitting as a panel of three. Opinion by Judge Crumlish, Jr.
[ 13 Pa. Commw. Page 494]
On September 18, 1968, Mary D. Thomas (Claimant) was struck at the base of her spine by an iron lay while in the regular course of her employment as a battery hand for Tioga Textiles Associates, Inc. (Employer). A compensation agreement was subsequently reached which admitted a work-related injury to Claimant's back, and provided for weekly total disability payments of $44.00, commencing January 27, 1969, and medical expenses, all within the limits of the Pennsylvania Workmen's Compensation Act.*fn1
Employer's initial termination petition was dismissed by a referee after a hearing. No appeal was taken. A second termination petition was filed July 30, 1970. The previously presiding referee heard the testimony of employer's doctor witness who testified that x-rays and examination in June 1970 revealed that Claimant's persisting disability no longer was related to her back injury, but was the result of a rheumatoid arthritic affliction of the right sacroiliac joint. Being satisfied with this testimony, the referee granted employer's termination petition, and found that all industrial accident disability suffered by Claimant ended June 23, 1970.
The Workmen's Compensation Appeal Board (Board) on appeal vacated the determination of the referee and remanded*fn2 the case for the appointment
[ 13 Pa. Commw. Page 495]
of an impartial medical expert whose testimony was taken by a second referee. The expert testified that at the time of his examination on June 27, 1972, he could find no objective symptoms of rheumatoid arthritis. Rather, he found Claimant to have a 10% disability attributable to her back injury of September 18, 1968. Notwithstanding this record, the second referee again allowed employer's termination petition. His decision incorporated the findings of fact of the first referee, and, also found on the basis of the impartial expert's report that claimant's disability was "most likely based on a pre-existing rheumatoid arthritic condition, not aggravated by the aforesaid work-related accident."
Claimant again appealed to the Board which, on June 13, 1973, without taking additional evidence, reversed the referee. The Board set aside the second referee's findings of fact which related to the report and testimony of the impartial medical expert, and found that Claimant was still industrially disabled. Accepting the impartial medical expert's opinion, the compensation agreement was modified, however, to reflect the change in Claimant's disability from total to 10%. From this decision, Employer now comes to us.
It is acknowledged that as the party petitioning to terminate the compensation agreement, the Employer has the burden of proving that Claimant was either no longer disabled or that her continuing disability was no longer a product of her industrial injury. Aluminum Company of America v. Theis, 11 Pa. Commonwealth Ct. 587, 314 A.2d 893 (1974); Penn Paper and Stock Company v. Pohar, 9 Pa. Commonwealth Ct. 250, ...