Appeal from the Order of the Court of Common Pleas of Delaware County in case of Lola Enckler v. B. Altman Company and Zurich Insurance Company, No. 9821 of 1971.
John F. McElvenny, for appellant.
Charles S. Katz, Jr., with him R. D. Harburg, and Swartz, Campbell & Detweiler, for appellees.
Judges Kramer, Wilkinson, Jr. and Blatt, sitting as a panel of three. Opinion by Judge Wilkinson.
[ 19 Pa. Commw. Page 173]
On January 7, 1967, claimant-appellant suffered a compensable injury while in the employ of employer-appellee, when she slipped and fell, sustaining a sprain of her neck. Subsequently, the parties entered into a Workmen's Compensation Agreement pursuant to which claimant-appellant received compensation until May of 1967. Thereafter, employer-appellee filed a petition to terminate, alleging that all disability had terminated on or before April 30, 1967. After two hearings, the referee concluded that claimant-appellant had fully recovered from her injuries on May 12, 1967, and granted employer-appellee's petition as of that date. An appeal was then taken to the Workmen's Compensation Board (now the Workmen's Compensation Appeal Board) which affirmed the referee's decision but substituted as a finding of fact the date of May 23, 1967, as the date of recovery.*fn1 Upon further appeal to the Court of Common Pleas of Delaware County, that court, with an able opinion by Judge Reed, affirmed the Board's decision. Claimant-appellant has now appealed to this Court.
[ 19 Pa. Commw. Page 174]
In cases where the employer has filed a termination petition, the burden of proof is on that employer to show that the injured employee's disability, which was the subject of the compensation agreement, has ceased. Pomeroy's Inc. v. Workmen's Compensation Appeal Board, 15 Pa. Commonwealth Ct. 270, 325 A.2d 349 (1974). The issue on appeal is whether there was sufficient competent evidence to support the findings of the Board.
The main thrust of claimant-appellant's argument is that there was not sufficient competent evidence to support a finding that all of claimant-appellant's disability had ceased or ended. We disagree. A review of the record for evidence supportive of the Board's findings shows the following: Claimant-appellant, as early as 1963, had suffered from a pre-existing cervical spondylosis or degenerative arthritis causing compression of nerve root, and had undergone various treatments as well as surgery for her condition. Dr. Grant, an orthopedic surgeon, who was employer-appellee's medical witness, testified that he was familiar with claimant-appellant's medical history and had treated her on numerous occasions following her accident. He discussed the symptoms she had suffered resulting from the accident and told of her slow but steady clinical improvement. He further testified:
"A. Yes. I saw her on May 12, 1967. At that time she was completely asymptomatic except at night, and at that time she said she was going to return to full work which I fully agreed to. I also thought that there was no need to see her. Then I saw her again. She returned again on the 23rd of May. She said she went to work for two weeks and had no trouble, and she had a rather heavy day on Mother's Day, but her neck appeared to be quite satisfactory. However, on the Sunday following the end of the day, her neck began to ache again. When I examined her, there was very little tenderness of the neck; there was minimal
[ 19 Pa. Commw. Page 175]
tenderness of the shoulders. She had a good range of motion, no neurologic deficit. I said at that time that I could ...