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WORKMEN'S COMPENSATION APPEAL BOARD COMMONWEALTH PENNSYLVANIA AND HENRIETTA L. BEAVER v. MIFFLIN-JUNIATA STATE HEALTH FOUNDATION AND STATE WORKMEN'S INSURANCE FUND (05/19/75)

decided: May 19, 1975.

WORKMEN'S COMPENSATION APPEAL BOARD OF THE COMMONWEALTH OF PENNSYLVANIA AND HENRIETTA L. BEAVER, APPELLEES,
v.
MIFFLIN-JUNIATA STATE HEALTH FOUNDATION AND STATE WORKMEN'S INSURANCE FUND, INSURANCE CARRIER, APPELLANTS



Appeal from the Order of the Workmen's Compensation Appeal Board in case of Henrietta L. Beaver v. Mifflin-Juniata Better Health Foundation, No. A-68343.

COUNSEL

Arthur J. Rinalda, with him Jay V. Yost, Special Assistant Attorney General, and John E. O'Connor, Assistant Attorney General, for appellant.

Helen Arseniu White, with her James N. Diefenderfer, for appellees.

Judges Crumlish, Jr., Kramer and Rogers, sitting as a panel of three. Opinion by Judge Kramer.

Author: Kramer

[ 19 Pa. Commw. Page 134]

This is an appeal by Mifflin-Juniata State Health Foundation and the State Workmen's Insurance Fund (hereinafter collectively referred to as the Foundation) from an order of the Workmen's Compensation Appeal Board (Board), dated October 17, 1974, which reversed a decision by a referee, and dismissed the Foundation's petition to terminate its compensation agreement with Henrietta L. Beaver (Beaver).

Beaver was employed by the Foundation as a "Home Health Aide" when she injured her back in a work-related accident on January 12, 1972. On February 1, 1972, Beaver and the Foundation executed compensation agreement No. 211-18-4402, which provided that Beaver would be paid compensation for temporary total disability at the rate of $47.66 per week. This agreement was approved and compensation was paid thereunder until August 17, 1972. On November 13, 1973, the Foundation filed a petition to terminate which alleged that "Claimant

[ 19 Pa. Commw. Page 135]

[Beaver] was able to return to work on 8-17-72 without any further disability or loss in earning power due to her accidental injury sustained on 1-12-72." A hearing was held before a referee on March 19, 1974 and testimony was taken from Beaver and Dr. John F. Whitehill, Jr., an orthopedic surgeon, who testified for the Foundation. In his decision, dated March 27, 1974, the referee found that:

"All disability resulting from the accidental injury of January 12, 1972 ceased and terminated as of August 17, 1972, the date to which compensation has been paid."

The referee, therefore, granted the Foundation's petition to terminate. Beaver appealed to the Board which, in a decision dated October 17, 1974, reversed the referee and dismissed the Foundation's petition to terminate. The Board stated that the Foundation had failed to meet its burden of proof and, therefore, the Board deleted the referee's above-quoted finding of fact and added the following finding of fact:

"Claimant still suffers pain in her back from the accident, and the defendant has presented no competent evidence that all disability has ceased."

In its appeal to this Court the Foundation argues that the Board erred by substituting its finding for that of the referee and by ...


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