Robert H. Dickman, Goldberg & Frankel, Philadelphia, for appellant.
Edward H. Feege, Hayes & Feege, Allentown, for appellee.
James N. Diefenderfer, Allentown, for Workmen's Compensation.
Eagen, O'Brien, Pomeroy, Nix and Manderino, JJ. Jones, former C. J., did not participate in the consideration or decision of this case. Roberts, J., did not participate in the consideration or decision of this case. Pomeroy, J., filed a dissenting opinion.
On August 28, 1968, appellant's right thumb was crushed while she was working as a spot welder of small parts. Appellant and appellant's employer (appellee) entered into an agreement for compensation at a rate of $60.00 per week for an indefinite period beginning September 4, 1968. On July 30, 1970, appellee petitioned to terminate the agreement. The Referee denied termination of the agreement. The Workmen's Compensation Appeal Board thereafter vacated the Referee's Order and remanded the case for examination of appellant by an impartial physician. After the impartial physician testified before a new Referee, the agreement to pay compensation was suspended. The Workmen's Compensation Appeal Board affirmed the suspension and the Commonwealth Court affirmed the Board's order. The appellant was subsequently granted review by this Court.*fn1
Appellant argues on appeal that the record demonstrates that she suffers a continuing disability due to her injury of August 28, 1968, entitling her to further payments under the agreement. In a proceeding to modify or terminate benefits pursuant to a compensation agreement, "it is clearly the employer's burden to prove the allegations upon which he relies." Workmen's Compensation Appeal Board v. Brockway Glass Company, Inc., 21 Pa. Commw. 444, 446, 346 A.2d 916, 917 (1975). See also Workmen's Compensation Appeal Board v. Dill Construction Co., 20 Pa. Commw. 145, 341 A.2d 537 (1975); Servomation Corp. v. Workmen's Compensation Appeal Board, 15 Pa. Commw. 199, 325 A.2d 344 (1974); Wilkes-Barre Iron & Wire Works, Inc. v. Workmen's Compensation Appeal Board, 9 Pa. Commw. 612, 309 A.2d 172 (1973). The claim of the employer in this case was that
appellant is no longer disabled as a result of the August, 1968 accident and that her inability to work is caused by reasons other than said accident. The findings of fact of the second Referee which are adequately supported by competent medical testimony clearly show that the employer did not satisfy his burden of proving these allegations. The Referee not only found that appellant still experiences some "loss of function of her right thumb as indicated by her difficulty in getting the same to her forefinger", but also that there is an absence of proof of the cause of the continuing disability, which cause "cannot be established with reasonable medical certainty."
Based on his findings of fact, the Referee made the following conclusion of law:
"The injury sustained by the Claimant on 27 [sic] August 1968 has not been proven to be the cause of the Claimant's present disability. However, and in view of the fact the Claimant does experience minimal residual disability, the employer has indicated it would not oppose an Order for suspension [as opposed to termination]."
Our scope of review is "limited to the question of whether the findings of fact support the Board's conclusions." Utter et al. Appellants v. Asten-Hill Manufacturing Co., 453 Pa. 401, 405, 309 A.2d 583, 585 (1973). The only conclusion which may be arrived at from the Referee's findings of fact is that the employer did not satisfy his burden of proof in having failed to show either that the disability has ceased or that the continued disability is the result of an independent cause. Instead, the Referee erroneously shifted the burden of proving causation to ...