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CLEO V. HILL v. COMMONWEALTH PENNSYLVANIA (05/20/81)

decided: May 20, 1981.

CLEO V. HILL, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, WORKMEN'S COMPENSATION APPEAL BOARD AND CITY OF PHILADELPHIA, RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in case of Cleo V. Hill v. City of Philadelphia, No. A-76929.

COUNSEL

Cleo V. Hill, petitioner, for herself.

Denise Rae Scott, Assistant City Solicitor, with her Judith N. Dean, Deputy City Solicitor, and Alan J. Davis, City Solicitor, for respondent, City of Philadelphia.

Judges Mencer, Craig and Palladino, sitting as a panel of three. Opinion by Judge Palladino. Judge Wilkinson, Jr. did not participate in the decision in this case.

Author: Palladino

[ 59 Pa. Commw. Page 220]

Claimant Cleo V. Hill appeals an order of the Workmen's Compensation Appeal Board (Board) which affirmed a referee's termination of Claimant's petition for compensation. We affirm the Board's order.

On July 12, 1968, Claimant was injured as the result of a work-related accident that occurred in the course of her employment. From July 15 to July 19, 1968, Claimant was paid "sick leave." From July 22 to September 6, 1968, Claimant was given full pay

[ 59 Pa. Commw. Page 221]

    and was carried by her Employer as "injured on duty time."*fn1 The monies Claimant thus received were not within the purview of the Pennsylvania Workmen's Compensation Act (Act)*fn2 since the Act provides that an injured employee can only obtain workmen's compensation benefits pursuant to either a Section 407*fn3 compensation agreement made with the employer or a Section 410*fn4 claim filed with the Board. Crucible Steel Co. of America v. Workmen's Compensation Appeal Board, 9 Pa. Commonwealth Ct. 269, 306 A.2d 395 (1973).

Claimant first sought workmen's compensation benefits on November 7, 1969, when she filed a claim petition with the Board. Under the Act Claimant then had the burden of proving a compensable injury. Halaski v. Hilton Hotel, 487 Pa. 313, 409 A.2d 367 (1979); Leaseway Systems, Inc. v. Workmen's Compensation Appeal Board, 53 Pa. Commonwealth Ct. 520, 418 A.2d 796 (1980). After numerous hearings, the referee concluded that Claimant had not established that her accident of July 12, 1968, had produced an injury which continued beyond September 6, 1968,*fn5 the date on which Claimant last received full pay as "injured on duty time."*fn6 Therefore, Claimant was denied benefits.

[ 59 Pa. Commw. Page 222]

In this appeal Claimant contends that the referee not only capriciously disregarded competent evidence of Claimant's continuing disability but also improperly relied upon the medical report of Dr. Stein, an orthopedic surgeon who testified for Claimant's Employer. Because the party with the burden of proof (Claimant) did not prevail below, the Court's scope of review consists of determining whether the referee's findings of fact are consistent with each other and with the conclusions of law and can be sustained without a capricious disregard of competent evidence. Republic Steel Corp. v. Workmen's Compensation Appeal Board, 56 Pa. Commonwealth Ct. 57, 423 A.2d 1142 (1981); Children's Aid & Family Services v. Workmen's Compensation Appeal Board, 53 Pa. Commonwealth Ct. 379, 417 A.2d 1297 (1980).

The referee heard and evaluated the conflicting testimony of several witnesses including Dr. Stein (Employer's witness), Claimant, Claimant's ...


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