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WORKMEN'S COMPENSATION APPEAL BOARD AND STEPHEN OYENIK v. KELLY STEEL ERECTORS (06/29/76)

decided: June 29, 1976.

WORKMEN'S COMPENSATION APPEAL BOARD AND STEPHEN OYENIK
v.
KELLY STEEL ERECTORS, INC. AND THE HARTFORD ACCIDENT & INDEMNITY COMPANY, INSURANCE CARRIER, APPELLANTS



Appeal from the Order of the Workmen's Compensation Appeal Board in case of Stephen Oyenik v. Kelly Steel Erectors, Inc., No. A-70372.

COUNSEL

Fred C. Trenor, II, with him Meyer, Darragh, Buckler, Bebenek & Eck, for appellant.

Francis J. Carey, with him Balzarini, Walsh, Conway & Maurizi, and James N. Diefenderfer, for appellees.

Judges Crumlish, Jr., Wilkinson, Jr., and Blatt, sitting as a panel of three. Opinion by Judge Crumlish, Jr. Judge Kramer did not participate in the decision in this case.

Author: Crumlish

[ 25 Pa. Commw. Page 330]

Presently before us is the appeal of Kelly Steel Erectors, Inc., and its carrier, The Hartford Accident & Indemnity Company (Appellant) from the opinion and order of the Workmen's Compensation Appeal Board (Board) which affirmed the referee's decision dismissing Appellant's petition to terminate benefits under the compensation agreement to Stephen Oyenik (Claimant). For reasons hereinafter stated, we affirm the Board's order.

In Workmen's Compensation Appeal Board v. Young, 18 Pa. Commonwealth Ct. 515, 336 A.2d 665 (1975), we enunciated our standard of review in compensation cases as follows:

"If the party who has the burden of proof prevailed in the administrative process, review by this Court is to determine whether constitutional rights

[ 25 Pa. Commw. Page 331]

    were violated, an error of law committed or to make certain that necessary findings of fact are supported by substantial evidence . . . but if the decision is against the party carrying 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 can be sustained without a capricious disregard of competent evidence." Workmen's Compensation Appeal Board v. Young, supra, 18 Pa. Commonwealth Ct. at 517-18, 336 A.2d at 666.

Further, it is by now all too well settled that the burden is upon the employer bringing the termination petition to show that the disability has ceased or that it is no longer the result of the compensable injury. Workmen's Compensation Appeal Board v. International Furnace, 21 Pa. Commonwealth Ct. 390, 345 A.2d 780 (1975). Since the employer did not prevail below, our review is essentially for a capricious disregard of competent evidence.

In this regard, Appellant seeks to challenge the referee's findings of fact nos. six, seven and eight, which state:

"Sixth: The claimant's physician and surgeon, Dr. William J. Mitchell, has, as of the date of the hearing before this Referee, found that the claimant was totally and ...


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