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BURGETTSTOWN AREA SCHOOL DISTRICT AND INSURANCE COMPANY NORTH AMERICA v. COMMONWEALTH PENNSYLVANIA (11/15/79)

decided: November 15, 1979.

BURGETTSTOWN AREA SCHOOL DISTRICT AND INSURANCE COMPANY OF NORTH AMERICA, PETITIONERS
v.
COMMONWEALTH OF PENNSYLVANIA, WORKMEN'S COMPENSATION APPEAL BOARD AND MAGDELENE SLONE, RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in case of Magdelene Slone v. Burgettstown Area School District, No. A-74550.

COUNSEL

Raymond F. Keisling, with him Will & Keisling, for petitioners.

Arnold Turner, Jr. and John Brunner, for respondents.

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

Author: Craig

[ 47 Pa. Commw. Page 327]

This appeal, by the employer's insurance carrier from a decision of the Workmen's Compensation Appeal Board (board) affirming a referee's dismissal of a petition to terminate a notice of compensation payable, leaves us without evidence of a crucial fact. Accordingly, we must remand.

Before her injury, claimant was a physical education instructor. As a result of her work-related accident, she continues to suffer from the effects of

[ 47 Pa. Commw. Page 328]

    ruptured discs in the lumbar area of the spine and cervical area of the neck.

Because the insurer moved to terminate the present compensation agreement, it bore the burden before the compensation authorities of showing the termination or change of claimant's disability and the availability of work which claimant is capable of doing. Workmen's Compensation Appeal Board v. Pennsylvania School Boards Association, 28 Pa. Commonwealth Ct. 618, 369 A.2d 503 (1977).

Beyond dispute, the medical testimony established that claimant is at least partially disabled, operates under certain physical limitations, and is currently incapable of returning to the position of physical education instructor, a job which would require her to demonstrate sundry body movements to her students.*fn1

The issue is whether or not claimant is capable of performing assignments as a substitute classroom teacher, given her present physical limitations. There is no dispute ...


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