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HAROLD W. BAILEY v. COMMONWEALTH PENNSYLVANIA (07/06/81)

decided: July 6, 1981.

HAROLD W. BAILEY, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, WORKMEN'S COMPENSATION APPEAL BOARD, AUTO RENTAL COMPANY AND RELIANCE INSURANCE COMPANY, RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in case of Harold W. Bailey v. Auto Rental Company, No. A-78644.

COUNSEL

Thomas P. Geer, for petitioner.

C. Robert Keenan, III, with him Robert W. Murdoch, for respondent, Auto Rental Company.

Judges Rogers, Williams, Jr. and Palladino, sitting as a panel of three. Opinion by Judge Rogers.

Author: Rogers

[ 60 Pa. Commw. Page 339]

Harold Bailey (claimant) was employed by Auto Rental Company (employer) as a truck mechanic when on August 5, 1975, he injured his back while lifting an eighty pound truck transmission at work. The claimant

[ 60 Pa. Commw. Page 340]

    was compensated by the employer for total disability from that date until March 18, 1977, when the employer had the claimant examined by Dr. Roy S. Temeles who signed an affidavit stating that Mr. Bailey could return to work. The employer then filed a termination petition and was granted an automatic suspension of compensation.*fn1

Dr. Temeles, who testified by deposition for Auto Rental, stated that Mr. Bailey had a congenital weakness in the structure of his back, which weakness had predisposed the claimant to the work injury of August 5, 1975. Dr. Temeles concluded that, as of March 18, 1977, the claimant had completely recovered from whatever disability was the result of the August 5, 1975 injury but that the claimant still had the same back weakness he had had before the work injury and therefore would be vulnerable to reinjury if he returned to his job. However, Dr. Temeles added that the claimant could reinjure his back doing something as undemanding as tying his shoe.

Dr. James Ballantyne, who was the treating physician, testified, also by deposition, that the claimant had a congenital back weakness which had been aggravated by the claimant's work injury to the extent that the claimant could no longer perform his former work involving heavy lifting. The referee, finding that Dr. Temeles' testimony was the more credible of the two medical experts, found as fact that all of the claimant's disability resulting from the work-related injury of August 5, 1975, ceased as of March 18, 1977, and that the claimant was able, without limitation, to return to his former occupation on that date. The claimant appealed and the Workmen's Compensation Appeal Board affirmed.

[ 60 Pa. Commw. Page 341]

In a termination petition proceeding, the employer has the burden of proving that the disability for which it has agreed to pay compensation has ceased. Walther v. Workmen's Compensation Appeal Board, 37 Pa. Commonwealth Ct. 122, 388 A.2d 1166 (1978). Since the employer prevailed in the administrative process, review by this court is limited to determining whether constitutional rights were violated, whether an error of law was committed or whether the necessary findings of fact were supported by substantial evidence. Workmen's Compensation Appeal Board v. Kelly Steel Erectors, Inc., 25 Pa. Commonwealth Ct. 329, 361 A.2d 478 (1976). The claimant argues that the referee's finding that the claimant could return to work without limitation is not supported by substantial evidence since Auto Rental failed to meet its burden, with the medical evidence it presented, of showing that all of the claimant's disability had ceased.

Dr. Temeles' testimony included the following statement about the claimant's physical condition: "He has always had an unstable back, and the instability did not stem from his accident of August, 1975. It antedated that as it will in the future, postdate that." The central point of Dr. Temeles' testimony is that the condition of the claimant's back is the same now as it was before the work injury. When the claimant was injured at work he was temporarily totally disabled as a result of that injury. But, as of March 18, 1977, all disability related to the work injury had cleared up and the claimant was back to having a congenital back weakness making him susceptible to injuries just as he had before August 5, 1975. The referee believed this ...


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