Appeal from the Order of the Workmen's Compensation Appeal Board in case of Pauline L. Beissel v. John Wanamaker, Inc., No. A-78936.
Ronald M. Katzman, Goldberg, Evans & Katzman, for petitioner.
Joseph P. Hafer, with him R. Burke McLemore, Jr., Thomas & Thomas, for respondent, John Wanamaker, Inc.
President Judge Crumlish and Judges Blatt and MacPhail, sitting as a panel of three. Opinion by Judge Blatt. Judge Mencer did not participate in the decision in this case.
The petitioner, Pauline L. Beissel, seeks review of an order of the Workmen's Compensation Appeal Board (Board) which affirmed a referee's decision granting the employer's*fn1 petition to terminate benefits.
The petitioner and her employer entered into a compensation agreement on February 3, 1977 by which
she was to receive benefits for total disability due to a lower back injury incurred in a fall at her workplace in May of 1975. The employer subsequently filed a petition to terminate benefits in January of 1979, and on June 22, 1979, a referee granted a supersedeas suspending payment of benefits based upon the deposition of the employer's medical witness who asserted that the petitioner's then existing disability was not work-related. After hearings were conducted, the referee granted the termination petition, finding that the work-related disability had ended as of June 22, 1979 and that the petitioner's current inability to work was not caused by her fall in May of 1975. The Board affirmed the referee's decision and this petition for review followed.
The petitioner argues that the employer did not meet its burden of establishing that a change in her disability had occurred after the compensation agreement had been entered into and that benefits, therefore, should not have been terminated. See Banks v. Workmen's Compensation Appeal Board, 15 Pa. Commonwealth Ct. 373, 327 A.2d 404 (1974). She contends that the employer's medical witness testified that her disability was caused by a nonwork-related incident which occurred in March of 1976,*fn2 prior to the February 3, 1977 date of the compensation agreement and that such testimony is not sufficient to establish either a termination of her work-related disability or a change in the degree of that disability after the date of the compensation agreement. She also maintains that the employer is attempting to use the vehicle of a termination petition to relitigate the issue of the employer's liability for the original disability which was settled by the terms of the compensation agreement. Banks.
In McGee v. L. F. Grammes & Sons, Inc., 477 Pa. 143, 383 A.2d 864 (1978), our Supreme Court stated that an employer which seeks to terminate benefits provided for in a compensation agreement must "show either that the [work-related] disability has ceased or that the continued disability is the result of an independent cause," Id. at 146, 383 A.2d at 865 (emphasis added), and we agree with the Board that the employer here has met that burden. The medical witness testified by deposition that, based on his August 1978 examination of the petitioner, the history that he was given and his examination of her hospital records and other medical reports, the petitioner's herniated disc and the admitted disability resulting therefrom were not caused by her fall in May of 1975 and that her present disability was attributable to the non-employment-related incident of March of 1976. This evidence does not establish a change in the petitioner's condition but it is sufficient to support the referee's finding that her present disability is not work-related and that it resulted from an independent cause as was required in McGee.
Moreover, we do not believe that the employer's initial admission of liability which was established in the compensation agreement is controlling in the instant situation. It is true that by ...