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MAIN LINE CONVERTIBLE AND TRAVELERS INSURANCE COMPANY v. COMMONWEALTH PENNSYLVANIA (12/29/81)

decided: December 29, 1981.

MAIN LINE CONVERTIBLE AND TRAVELERS INSURANCE COMPANY, PETITIONERS
v.
COMMONWEALTH OF PENNSYLVANIA, WORKMEN'S COMPENSATION APPEAL BOARD AND ANTHONY FRANCO, RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in case of Anthony Franco v. Main Line Convertible, No. A-79097.

COUNSEL

Charles S. Katz, Jr., Swartz, Campbell & Detweiler, for petitioners.

Frank B. Tracy, of counsel, Monteverde, Hemphill, Maschmeyer & Obert, for respondent, Anthony Franco.

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

Author: Palladino

[ 63 Pa. Commw. Page 468]

This is an appeal by Main Line Convertible (Employer) and Traveler's Insurance Company from an order of the Workmen's Compensation Appeal Board affirming a referee's denial of their petition to suspend payment of benefits to Anthony F. Franco (Claimant). We affirm.

Claimant, a sales manager for Employer, incurred an injury to his back and neck on July 29, 1974, which rendered him totally disabled and for which he was paid workmen's compensation benefits commencing February 17, 1976. On February 20, 1979, Employer filed a suspension petition which alleged that Claimant had recovered from his injuries as of December 19, 1978. Claimant responded by denying that he had recovered and averring that he remained totally disabled,

[ 63 Pa. Commw. Page 469]

    under a physician's care and unable to return to any gainful employment.

At referee's hearings, Employer presented the testimony of a physician whom it retained to examine Claimant as evidence that Claimant, at the very worst, was only partially disabled. Also testifying for Employer was a job placement counselor who discussed a number of jobs he knew to be available and which, based on the results of the examination of Claimant by Employer's physician, he was of the opinion Claimant could do. Claimant countered with testimony of his own and that of his attending physician to show that his total disability continued.

Following the hearings, the referee ruled that Claimant remained totally disabled and ordered that benefits continue to be paid accordingly. The Board took no new evidence in affirming and the appeal to this Court followed.

In a proceeding to terminate or suspend workmen's compensation benefits "[t]he employer as the moving party has the burden of showing that the claimant's disability has ended or has been reduced and that (1) work is available to the claimant and (2) claimant is capable of doing such work." Republic Steel Corp. v. Workmen's Compensation Appeal Board, 54 Pa. Commonwealth Ct. 509, 512, 422 A.2d 228, 229 (1980). Where, as here, the party with the burden of proof has not prevailed below, this Court's scope of review is limited to determining whether the findings of fact are consistent with each other and with the conclusions of law and can ...


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