Appeal from the Order of the Workmen's Compensation Appeal Board in case of Henry E. Barnes v. International Finance Corporation, No. A-68059.
James P. Lay, III, with him Gifford & Lay, for appellant.
John C. Reed, with him Harvey E. Moore, Routman, Moore, Goldstone and Valentino, and James N. Diefenderfer, for appellees.
Judges Crumlish, Jr., Wilkinson, Jr. and Rogers, sitting as a panel of three. Opinion by Judge Crumlish, Jr.
[ 21 Pa. Commw. Page 391]
This is an appeal by International Furnace Corporation (Employer) from a decision and order of the Workmen's Compensation Appeal Board which reversed a decision of the referee granting Employer's Termination Petition. Henry E. Barnes (Claimant) injured his back on October 18, 1962, while in the course of his employment with Employer. The referee determined that Claimant was totally disabled as a result of the back injury and awarded him compensation. On March 24, 1969, Employer
[ 21 Pa. Commw. Page 392]
filed a petition seeking to terminate the compensation as of May 26, 1964, alleging that Claimant was no longer disabled or unable to work as a result of the 1962 injury. The referee granted the termination petition effective March 3, 1969 and Claimant appealed to the Workmen's Compensation Appeal Board. The Board reversed the decision of the referee and made its own findings of fact and conclusions of law and ordered Employer to resume compensation. Hence this appeal. We reverse.
The issue raised on appeal is the propriety of the action of the Workmen's Compensation Appeal Board in making an independent and dispositive finding of fact contrary to that of the referee where no additional evidence was taken by the Appeal Board.
At the hearing before the referee on the termination petition, Dr. Reed,*fn1 Employer's medical expert, testified that in each of two examinations, he diagnosed Claimant as having both a congenital defect in his spine and a contusion and low back sprain which were related to the 1962 accident. Dr. Reed further testified that there was no longer any residual effect upon Claimant's back from the 1962 accident and that any continuing inability of Claimant to work was not due to his 1962 accident.
Dr. Likens, Claimant's medical expert, who had been consulted by Claimant at the time of the 1962 accident, and who had treated Claimant twice a week from that time until April 24, 1971, testified that there has been no change or improvement in Claimant's condition. It was Dr. Likens' opinion that Claimant's continuing total disability was related to the 1962 injury. Dr. Likens based his opinion upon the fact that he had not treated Claimant prior to the 1962 accident.
[ 21 Pa. Commw. Page 393]
The referee found as a fact that Dr. Likens' medical testimony was not of the quality required to establish total disability and the relation of the disability to a compensable injury. The referee apparently found the testimony of Dr. Reed more credible. Therefore, the conclusion of law reached by the referee was that the burden of showing a cessation of all disability ...