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K-MART CORPORATION v. COMMONWEALTH PENNSYLVANIA (01/12/81)

decided: January 12, 1981.

K-MART CORPORATION, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, WORKMEN'S COMPENSATION APPEAL BOARD AND MICHAEL A. PHILLIPS, SR., RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in case of Michael A. Phillips v. S.S. Kresge Company, No. A-77356.

COUNSEL

Albert G. Feczko, Jr., Feczko and Seymour, for petitioner.

William F. Caruthers, Caruthers & Bruce, for respondent, Michael A. Phillips, Sr.

Judges Blatt, Craig and MacPhail, sitting as a panel of three. Opinion by Judge Craig.

Author: Craig

[ 56 Pa. Commw. Page 53]

In this workmen's compensation case, K-Mart Corporation (employer) appeals a referee's dismissal of its petition to terminate benefits to claimant Michael A. Phillips, which the board*fn1 affirmed.

The claimant, a security chief, was injured in October, 1974 when he slipped and fell while chasing two shoplifters. The employer executed a notice of compensation payable on November 26, 1974, which awarded benefits to the claimant for a pulled ligament in his "knee."*fn2 The employer filed the petition to terminate on January 7, 1977, contending that the claimant had recovered from the injury sustained and was not permanently disabled. The referee granted a supersedeas.

[ 56 Pa. Commw. Page 54]

At the hearings, Dr. Ferguson, an orthopedic surgeon testifying for the employer, stated unequivocally that the claimant was no longer disabled from the injury he sustained at work. The claimant testified to an original work-related injury to his left knee, followed by an operation upon that knee, and an aggravation of a pre-existing right knee condition because of the stress resulting from his inability to use the left knee. He also complained of neck and back problems arising from the strain. The claimant submitted two depositions of his treating orthopedic surgeon, Dr. Barua.

The referee concluded that the employer had failed to establish that disability stemming from the injury had ceased; he found that the claimant remained totally disabled, and ordered the employer to reinstate compensation.

The employer presents two contentions in urging us to reverse. First, it asserts that the claimant produced no "clear and convincing medical evidence" to prove his continuing disability.

This contention ignores the salient premise that the employer has the burden of proving that the disability for which it agreed to pay compensation has ceased. Peoples Gas Heating Co. v. Workmen's Compensation Appeal Board, 33 Pa. Commonwealth Ct. 530, 382 A.2d 484 (1978). Upon the employer's presentation of evidence, the burden did not shift to the claimant to prove his continuing disability. McIntosh v. Borough of Pleasant Hills, 25 Pa. Commonwealth Ct. 311, 360 A.2d 273 (1976).

When the decision below is against the party with the burden of proof, our review is limited to a determination of whether the referee's findings can be sustained without a capricious ...


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