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PETER WALESKI v. WORKMEN'S COMPENSATION APPEAL BOARD (TIMES MIRROR MAGAZINE ET AL.) (10/25/83)

decided: October 25, 1983.

PETER WALESKI, PETITIONER
v.
WORKMEN'S COMPENSATION APPEAL BOARD (TIMES MIRROR MAGAZINE ET AL.), RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in case of Peter Waleski v. Times Mirror Magazine, No. A-81329.

COUNSEL

Dominick P. Pannunzio, for petitioner.

Paul A. Barrett, Nogi, O'Malley, Harris & Schneider, P.C., for respondent, Times Mirror Magazine.

Judges Rogers, MacPhail and Barry, sitting as a panel of three. Opinion by Judge MacPhail.

Author: Macphail

[ 78 Pa. Commw. Page 76]

Peter Waleski (Claimant) appeals the decision of the Workmen's Compensation Appeal Board (Board), affirming the referee's determination that payment of compensation should be terminated.

Claimant had been employed by Times Mirror Magazine (Employer) for nine years. The record shows that Claimant was injured at work on July 12, 1979 while attempting to pick up a carton from the floor, was treated for lower back pain, had x-rays taken on July 13, 1979, and continued to receive medical tratment for back pain. Claimant received compensation benefits following this injury. On January 29, 1980, Allstate Insurance Company, insurance carrier for Employer, filed a petition to terminate compensation as of January 14, 1980.

[ 78 Pa. Commw. Page 77]

At the subsequent hearing the referee found as fact that:

[O]n January 14, 1980, the claimant was no longer disabled by the injury which occurred on July 12, 1979, but was disabled by conditions not related to his back injury. These conditions are his gout, the marked fluid retention, and his marked obesity.

Having concluded that the disability attributable to Claimant's injury had terminated, the referee ordered that compensation payments be terminated, effective January 14, 1980. This order was affirmed by the Board, resulting in the instant appeal.

The burden is on the employer, where termination of compensation benefits is sought, to prove that the claimant's disability has ceased. Costanzo v. Workmen's Compensation Appeal Board, 49 Pa. Commonwealth Ct. 249, 410 A.2d 967 (1980). Where, as here, the Board has not heard additional testimony or taken additional evidence, and a decision in favor of the party having the burden of proof is before us, "we are bound to accept the referee's factual determinations provided they are supported by competent and sufficient evidence." Mickles v. Workmen's Compensation Appeal Board, 59 Pa. Commonwealth Ct. 109, 112-113, 428 A.2d 1035, 1037 (1981). We must therefore look at the sufficiency of the ...


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