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RODNEY A. MCINTOSH v. BOROUGH PLEASANT HILLS. WORKMEN'S COMPENSATION APPEAL BOARD COMMONWEALTH PENNSYLVANIA. BOROUGH PLEASANT HILLS (06/25/76)

decided: June 25, 1976.

RODNEY A. MCINTOSH
v.
BOROUGH OF PLEASANT HILLS. WORKMEN'S COMPENSATION APPEAL BOARD OF THE COMMONWEALTH OF PENNSYLVANIA. BOROUGH OF PLEASANT HILLS, APPELLANT



Appeal from the Order of the Workmen's Compensation Appeal Board in case of Rodney A. McIntosh v. Borough of Pleasant Hills, No. A-70231.

COUNSEL

Joseph B. Bagley, with him Bagley, Weaver & Sydor, for appellant.

Leonard P. Kane, Jr., with him Brandt, McManus, Brandt & Malone, and James N. Diefenderfer, for appellees.

President Judge Bowman and Judges Mencer and Rogers, sitting as a panel of three. Opinion by Judge Mencer. Judge Kramer did not participate in the decision in this case.

Author: Mencer

[ 25 Pa. Commw. Page 312]

Following an injury that occurred during the course of his employment as a police officer, Rodney A. McIntosh (claimant) has continued to receive, during his recuperation, his salary from the Borough of Pleasant Hills (Borough). The Borough, pursuant to the provisions of Section 1 of the Act of June 28, 1935, P.L. 477, as amended (Heart and Lung Act), 53 P.S. § 637, has been receiving claimant's workmen's compensation benefits from the Northwestern National Insurance Group (Insurer). On October 19, 1974, Insurer tendered its last payment to the Borough. Then, on October 24, 1974, Insurer filed a petition for termination, alleging claimant's ability to return to work on October 14, 1974.*fn1 Nevertheless, as of the time of this appeal claimant had not yet returned to work and was still receiving his salary from the Borough.

After several hearings, a referee denied Insurer's termination petition and ordered Insurer to continue

[ 25 Pa. Commw. Page 313]

    its payments to the Borough. The Workmen's Compensation Appeal Board (Board), without taking additional evidence, affirmed. This appeal followed.

Insurer, as the party petitioning to terminate the compensation agreement, was required to carry the burden of proving that claimant was no longer entitled to disability compensation. Workmen's Compensation Appeal Board v. Mushroom Transportation Company, 18 Pa. Commonwealth Ct. 177, 334 A.2d 788 (1975). Therefore, because the decision was against the party bearing the burden of proof, our review is limited to a determination of whether the findings of fact are consistent with each other and with the conclusions of law and whether they can be sustained without a capricious disregard of competent evidence. Workmen's Compensation Appeal Board v. Mushroom Transportation Company, supra.

Insurer, pointing to this Court's opinions in Workmen's Compensation Appeal Board v. Mifflin-Juniata State Health Foundation, 19 Pa. Commonwealth Ct. 133, 338 A.2d 691 (1975), and Workmen's Compensation Appeal Board v. Guzman, 18 Pa. Commonwealth Ct. 275, 334 A.2d 852 (1975), contends that the testimony of its physician, Dr. Charles F. Berg, was sufficient, as a matter of law, to sustain its burden of proof and that, pursuant to Anderson v. Independent Pier Co., 13 Pa. Commonwealth Ct. 268, 320 A.2d 925 (1974), claimant was then required to come forward with rebutting evidence, a task Insurer contends claimant failed to carry out. Initially, we note that both Mifflin-Juniata and Guzman merely held that the respective petitioners' physician witnesses' testimony was, under the circumstances of those cases, enough to support the referees' findings that disability had terminated. In the instant case, the referee found that the disability continued. Additionally, Anderson merely reviewed the Board's analysis under

[ 25 Pa. Commw. Page 314]

    the facts of that case. It certainly did not set forth new law providing for the shifting of the burden of proof in termination petitions once the petitioner ...


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