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FOLMER ICE CREAM COMPANY AND CONTINENTAL NATIONAL AMERICAN GROUP v. WORKMEN'S COMPENSATION APPEAL BOARD AND HELEN M. BUSBEY (01/14/75)

decided: January 14, 1975.

FOLMER ICE CREAM COMPANY AND CONTINENTAL NATIONAL AMERICAN GROUP, INSURANCE CARRIER, APPELLANTS,
v.
WORKMEN'S COMPENSATION APPEAL BOARD AND HELEN M. BUSBEY, APPELLEES



Appeal from the Order of the Workmen's Compensation Appeal Board in case of Helen M. Busbey v. Folmer Ice Cream Co., No. A-67821.

COUNSEL

Leo E. Gribbin, Jr., with him Stetler & Bribbin, for appellant.

Wilson H. Oldhouser, with him James N. Diefenderfer, for appellees.

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

Author: Mencer

[ 17 Pa. Commw. Page 35]

On November 8, 1967, Helen M. Busbey (Busbey), while in the course of her employment with Folmer Ice Cream Company (Folmer), sustained an accidental injury to her back. On February 6, 1968, Busbey and Folmer executed a compensation agreement, the terms of which provided that Busbey was to be paid her medical expenses and the sum of $52.50 each week from November 17, 1967, during an indefinite period, for disability resulting from the accidental injury of November 8, 1967.

Folmer filed a termination petition on August 22, 1969. An answer was filed by Busbey and, following a hearing before a referee, the petition was dismissed. Folmer appealed this dismissal but subsequently withdrew the appeal and continued payments under the provisions of the compensation agreement. On March 22, 1973, Folmer filed a second termination petition which was also dismissed following a hearing before a referee. Folmer once more appealed to the Workmen's Compensation

[ 17 Pa. Commw. Page 36]

Appeal Board (Board) which affirmed the referee's determination and dismissed Folmer's appeal. This appeal followed and we affirm.

Since Folmer initiated proceedings to terminate compensation payments being made to Busbey under a compensation agreement, the burden of proof is upon Folmer to show that Busbey is no longer entitled to such payments. 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 law and its order and can be sustained without a capricious disregard of competent evidence. Sherred v. Pittsburgh, 7 Pa. Commonwealth Ct. 401, 299 A.2d 381 (1973).

Folmer asserts in this appeal that Busbey is not entitled to benefits because of that portion of Section 306(f) of The Workmen's Compensation Act,*fn1 as amended and renumbered, 77 P.S. ยง 531, which reads as follows:

"If the employe shall refuse reasonable services of duly licensed practitioners of the healing arts, surgical, medical and hospital services, treatment, medicines and supplies, he shall forfeit all rights to compensation for any injury or any increase in his incapacity shown to have resulted from such refusal."

Our examination of the record does not convince us that Busbey either refused reasonable medical services or that any of her injuries or incapacity is due to a refusal to ...


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