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WORKMEN'S COMPENSATION APPEAL BOARD COMMONWEALTH PENNSYLVANIA AND ROBERT V. SCHMUCKER v. DILL CONSTRUCTION COMPANY AND GLOBE INDEMNITY COMPANY (07/03/75)

decided: July 3, 1975.

WORKMEN'S COMPENSATION APPEAL BOARD OF THE COMMONWEALTH OF PENNSYLVANIA AND ROBERT V. SCHMUCKER
v.
DILL CONSTRUCTION COMPANY AND GLOBE INDEMNITY COMPANY, APPELLANTS



Appeal from the Order of the Workmen's Compensation Appeal Board in case of Robert V. Schmucker v. Dill Construction Company, No. A-68279.

COUNSEL

Robert C. Little, with him Burns, Manley & Little, for appellants.

No appearance for appellees.

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

Author: Kramer

[ 20 Pa. Commw. Page 146]

This is an appeal by the Dill Construction Company (Dill) from an order of the Workmen's Compensation Appeal Board (Board), dated October 17, 1974, which

[ 20 Pa. Commw. Page 147]

    affirmed a referee's denial of Dill's Petition for Termination of benefits. The Board's order also affirmed the referee's award of total disability benefits to Robert V. Schmucker (Schmucker).

Schmucker was injured in a fall on July 8, 1969, and, on September 4, 1969, Schmucker entered into a compensation agreement (for total disability) with Dill and its insurance carrier. Subsequent to this agreement, Dill filed a Petition to Modify the compensation agreement which, after hearing, resulted in a compromise providing for partial disability. These partial disability benefits were awarded in an order of the referee. Apparently believing that Schmucker's condition had further improved, Dill filed a Petition for Termination of benefits, which, after hearing, was denied by the referee on March 1, 1973. For reasons unexplained anywhere in the record, the referee's order not only denied the termination petition, but ordered payment for total disability as well. Dill appealed and the Board remanded for more definitive findings of fact. On remand, the referee again ordered the dismissal of the termination petition and an award of total disability benefits. The Board affirmed and Dill has appealed to us, contending that (1) the referee's findings of fact relevant to the termination petition are not supported by substantial evidence and were the result of a capricious disregard of competent testimony; and (2) that it was error for the referee and the Board to award Schmucker total disability benefits when the only matter formally presented for adjudication was Dill's petition praying for a termination of benefits.

An employer seeking to modify or terminate benefits has the burden of proving that the disability has diminished or ceased. Servomation Corporation v. Workmen's Compensation Appeal Board, 15 Pa. Commonwealth Ct. 199, 325 A.2d 344 (1974). Consequently, our scope of review is as stated by Judge Rogers in Pomeroy's Inc. v. Workmen's Compensation Appeal Board, 15 Pa. Commonwealth Ct. 270, 271, 325 A.2d 349, 350 (1974):

[ 20 Pa. Commw. Page 148]

"Where the decision of the compensation authorities is against the party having the burden of proof, our review is for the purpose of determining whether the findings are consistent with each other and with the conclusions of law and the order and whether the determination below can be sustained without a capricious disregard of competent evidence. Patterson v. Lenart, 9 Pa. Commonwealth Ct. 116, 305 A.2d 778 (1973). We view the evidence in the light most favorable to the party who prevailed below. The fact finder is not required to accept the testimony of any witness even though it is uncontradicted."

With regard to the denial of the termination petition, we are thus limited in this case to determining whether the referee capriciously disregarded competent medical evidence concerning Schmucker's continuing disability. We conclude ...


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