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EMPIRE KOSHER POULTRY v. COMMONWEALTH PENNSYLVANIA (06/19/79)

decided: June 19, 1979.

EMPIRE KOSHER POULTRY, INC. AND AMERICAN MUTUAL INSURANCE COMPANIES, PETITIONERS
v.
COMMONWEALTH OF PENNSYLVANIA, WORKMEN'S COMPENSATION APPEAL BOARD AND HERMAN FRONK, RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in case of Herman Fronk v. Empire Kosher Poultry, No. A-74105.

COUNSEL

Frank L. Tamulonis, with him Zimmerman, Lieberman & Derenzo, for petitioners.

Jeffrey L. Snook, with him Brugler & Levin, for respondents.

Judges Wilkinson, Jr., Mencer and Blatt, sitting as a panel of three. Opinion by Judge Mencer.

Author: Mencer

[ 43 Pa. Commw. Page 395]

In Universal Cyclops Steel Corp. v. Krawczynski, 9 Pa. Commonwealth Ct. 176, 305 A.2d 757 (1973), we held that referees are the ultimate factfinders in workmen's compensation cases, and the Workmen's Compensation Appeal Board (Board) must accept factual determinations of referees when findings are

[ 43 Pa. Commw. Page 396]

    supported by competent evidence. This is the appeal of Empire Kosher Poultry, Inc., and its insurance carrier from an order of the Board reversing a referee's grant of appellants' petition to terminate a compensation agreement with Herman Fronk.

Mr. Fronk was injured on November 9, 1971 when, while working as a chicken hanger, a chicken fell from the cutting room situated above him, hit him in the face, and then fell into a tank of liquid used to clean chickens, splashing the liquid into his eyes and ears and onto his arms. A compensation agreement was entered into by the employer, its insurance carrier, and Mr. Fronk providing for payments of $60 per week, beginning November 29, 1971, and for medical and hospital expenses, within the limits prescribed by The Pennsylvania Workmen's Compensation Act.*fn1

On August 18, 1975, Empire Kosher Poultry, Inc., filed a petition for termination in which it asserted the cessation of Mr. Fronk's accident-related disability as of August 17, 1975. After a hearing, a referee entered an order terminating compensation payments as of November 3, 1975. Mr. Fronk appealed to the Board, which reversed the referee, noting that the appellants here had failed to meet their burden of proof relative to their petition to terminate. The instant appeal followed and we reverse.

In a termination proceeding, the employer has the considerable burden of proving that disability has ceased. Workmen's Compensation Appeal Board v. F.W. Woolworth Co., 19 Pa. Commonwealth Ct. 413, 338 A.2d 784 (1975). Where the party with the burden of proof prevailed before the factfinder, as appellants did here, our scope of review is limited to a determination of whether constitutional rights were violated, an error of law was committed, or any necessary finding of fact was unsupported by competent

[ 43 Pa. Commw. Page 397]

    evidence. Sears, Roebuck & Co. v. Workmen's Compensation Appeal Board, 32 Pa. Commonwealth ...


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