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WALTER SHEPHERD v. COMMONWEALTH PENNSYLVANIA (04/13/82)

decided: April 13, 1982.

WALTER SHEPHERD, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, WORKMEN'S COMPENSATION APPEAL BOARD AND JOHN E. SHEPHERD, RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in case of Walter Shepherd v. Albert Shepherd, No. A-80179.

COUNSEL

Gerald J. Haas, for petitioner.

Ronald F. Bove, Swartz, Campbell and Detweiler, for respondent, John E. Shepherd & Company.

President Judge Crumlish and Judges Rogers and Blatt, sitting as a panel of three. Opinion by Judge Rogers.

Author: Rogers

[ 66 Pa. Commw. Page 102]

Walter Shepherd was employed as a plumber when on February 20, 1975, he injured his knee while digging a ditch. He was paid compensation for total disability until September 20, 1976, when he was examined by Dr. Edgar L. Pennell who then made an affidavit that Shepherd was fully recovered and could return to work. The employer then filed a termination petition.

At the referee's hearing, Dr. Pennell testified that as a result of the accident the claimant suffered torn

[ 66 Pa. Commw. Page 103]

    cartilage which had been removed by Dr. Marvin Kallish in October 1975. Dr. Pennell further gave his opinion that Shepherd had fully recovered and was able to return to work without any limitations. The employer also introduced surveillance films showing Shepherd carrying bags, walking in snow, and using hand tools while repairing an automobile.

Shepherd testified that he had attempted to return to work and did work on occasion but was unable to continue on an unlimited basis because of continued difficulty with his knee. He also testified that occasionally his knee is still painful and that it swells from time to time. He presented no expert medical evidence.

The referee found as a fact, based upon Dr. Pennell's testimony and the surveillance films, that Shepherd's disability ended as of September 21, 1976 and granted the prayer of the employer's petition to terminate. Shepherd appealed and the Workmen's Compensation Appeal Board affirmed.

In a proceeding for termination, the employer has the burden of proving that the claimant's disability has ceased. Bailey v. Workmen's Compensation Appeal Board, 60 Pa. Commonwealth Ct. 338, 431 A.2d 1114 (1981). Since the employer prevailed below our review 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). Shepherd argues that the referee's finding that ...


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