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PEOPLES GAS HEATING COMPANY AND AMERICAN FINANCIAL INSURANCE GROUP v. COMMONWEALTH PENNSYLVANIA (02/08/78)

decided: February 8, 1978.

PEOPLES GAS HEATING COMPANY AND AMERICAN FINANCIAL INSURANCE GROUP, PETITIONERS
v.
COMMONWEALTH OF PENNSYLVANIA, WORKMEN'S COMPENSATION APPEAL BOARD AND JOHN J. FITZMAURICE, RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in case of John J. Fitzmaurice v. Peoples Gas Heating Company, No. A-71239.

COUNSEL

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

Alexander J. Pentecost, with him James N. Diefenderfer, for respondents.

Judges Crumlish, Jr., Wilkinson, Jr. and Rogers, sitting as a panel of three. Opinion by Judge Crumlish, Jr.

Author: Crumlish

[ 33 Pa. Commw. Page 531]

The Workmen's Compensation Appeal Board (Board) dismissed an appeal from a decision of the referee denying a petition to terminate compensation benefits to Claimant, John J. Fitzmaurice. Peoples Gas Heating Company and American Financial Insurance Group (Appellants) take this appeal.

The petition sought to terminate workmen's compensation benefits, alleging that Claimant was no longer totally disabled from a job-related injury. Following a hearing, at which evidence was proffered, the referee made the following findings of fact: (1) that Claimant suffered an injury to his back in the course and scope of his employment as a salesman for Appellant, Peoples Gas Heating Company; (2) that Claimant received disability compensation for approximately one year pursuant to a Notice of Compensation Payable; (3) that Claimant was hospitalized and treated on several occasions for his back injury; (4) that

[ 33 Pa. Commw. Page 532]

    the injury rendered Claimant totally disabled and precluded him from returning to his usual and customary employment; (5) that Claimant suffers from various other physical problems which are not associated with his job-related disability; and (6) that Claimant's total disability continues to the present and will continue indefinitely. In making these findings, the referee relied upon Claimant's testimony and that of his physicians, electing not to accept the contradicted testimony of Appellants' physicians as to the nature of Claimant's disability, or that of two lay witnesses regarding the circumstances of Claimant's injury. No rationale was given by the referee in support of his decision to disregard this testimony.

In a proceeding to terminate payments under a Notice of Compensation Payable, the burden is upon the employer to prove that the disability of the claimant has terminated. See Shoup v. The Allegheny Lutheran Home, 25 Pa. Commonwealth Ct. 528, 360 A.2d 278 (1976). We view the evidence in the light most favorable to the party who prevailed below. See Hiram Wible & Son v. Keith, 8 Pa. Commonwealth Ct. 196, 302 A.2d 517 (1973). Questions of credibility and the resolution of conflicting testimony are for the fact-finder, and findings of fact sufficiently supported by the evidence will not be disturbed, although evidence to the contrary was also presented. See Padilla v. Chain Bike Corp., 27 Pa. Commonwealth Ct. 190, 365 A.2d 903 (1976).

Appellants set forth several arguments alleging error and pray for a remand. These arguments are without merit. We affirm.

Appellants first argue that the referee erred by failing to make findings of fact that are comprehensive and explicit so as to disclose the complete posture of the case. It is Appellants' contention that a ...


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