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GLORIA LEHMAN v. COMMONWEALTH PENNSYLVANIA (02/02/82)

decided: February 2, 1982.

GLORIA LEHMAN, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, WORKMEN'S COMPENSATION APPEAL BOARD AND TEMPLE UNIVERSITY HOSPITAL, RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in the case of Gloria Lehman v. Temple University Hospital, No. A-77245.

COUNSEL

Thomas F. McDevitt, for petitioner.

Ronald F. Bove, Swartz, Campbell & Detweiler, for respondent, Temple University Hospital.

President Judge Crumlish, Jr. and Judges Mencer, Rogers, Blatt, Williams, Jr., Craig and MacPhail. Opinion by Judge Blatt. Judge Palladino did not participate in the decision in this case.

Author: Blatt

[ 64 Pa. Commw. Page 382]

This is an appeal from an order of the Workmen's Compensation Appeal Board (Board) affirming a referee's order which granted a petition to terminate compensation filed on behalf of Temple University Hospital (employer) by its insurance carrier.

On December 12, 1974, Gloria Lehman (claimant), a thirty-year-old x-ray technician, sustained a compensable work-related injury to her back while lifting a patient and she received compensation benefits thereafter. On August 18, 1975, the employer filed a petition to terminate benefits, asserting that the claimant's disability had ceased on August 2, 1975. At the hearing which followed, the claimant testified that she was unable to return to work because of continued pain in her back and neck and her medical witness, Dr. Raymond Stein, a board-certified orthopedic surgeon who had treated her from April 14, 1976 through

[ 64 Pa. Commw. Page 383]

June 20, 1977, testified that her accident had aggravated a pre-existing condition and that, although he could not make a completely positive statement about her problems, he believed her complaints. He further stated that in his opinion she was able to return to work in a job which did not involve repetitive bending, twisting or lifting, or prolonged sitting or standing. The employer's medical witness, Dr. Herbert Stein, a board-certified orthopedic surgeon who had treated the claimant until October 8, 1975, testified that she had sustained an acute lumbosacral strain and that, although she continued to complain of pain, no significant objective indicia of a physical problem were present. On August 2, 1975 he had advised the claimant that she could return to work, which she did for a three week period until she experienced a recurrence of back pain. Then, following an orthpedic examination on October 8, 1975, Dr. Stein had advised the claimant that she was then able to return to work as an x-ray technician. He further testified that a psychological overlay may have exacerbated the claimant's symptoms, but that she was able to resume her employment at the time of her examination.

In a termination proceeding, the employer bears the burden of proving that the claimant's disability has ceased, Peoples Gas Heating Company v. Workmen's Compensation Appeal Board, 33 Pa. Commonwealth Ct. 530, 382 A.2d 484 (1978), and where, as here, the party with the burden of proof has prevailed below, review by this Court is limited to determining whether or not constitutional rights were violated, an error of law was committed, or any necessary finding of fact was unsupported by substantial evidence. Workmen's Compensation Appeal Board v. Booth & Flinn Co., 18 Pa. Commonwealth Ct. 369, 336 A.2d 448 (1975).

[ 64 Pa. Commw. Page 384]

After hearing and considering the evidence, the referee found, inter alia, that:

3. It is the specific findings [ sic ] of the Referee, based upon the testimony of Dr. Herbert Stein (who [ sic ] the Referee finds credible) and although the Claimant may have some subjective complaints and was treated on asymthematic [ sic ] ...


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