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JAB ENTERPRISES v. WORKMEN'S COMPENSATION APPEAL BOARD (HAEHN) (01/23/84)

decided: January 23, 1984.

JAB ENTERPRISES, INC., PETITIONER
v.
WORKMEN'S COMPENSATION APPEAL BOARD (HAEHN), RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in case of Shirley A. Haehn v. JAB Enterprises, Inc., No. A-82305.

COUNSEL

Harry K. Thomas, with him Ronald W. Folino, Knox, Graham, McLaughlin, Gornall and Sennett, Inc., for petitioner.

Robert J. Felton, Jack, Kookogey & Felton, for respondent, Shirley A. Haehn.

Judges Rogers, Craig and Doyle, sitting as a panel of three. Opinion by Judge Doyle.

Author: Doyle

[ 79 Pa. Commw. Page 639]

JAB Enterprises, Inc. (Petitioner) seeks review of the decision of the Workmen's Compensation Appeal Board (Board) which reversed a referee's order which suspended disability benefits to Shirley A. Haehn (Employee).

[ 79 Pa. Commw. Page 640]

On August 22, 1978, Employee sustained injuries to her right arm, ribs and shoulder during the course of her employment, and began receiving total disability compensation under a Notice of Compensation Payable*fn1 issued by Petitioner. On October 8, 1979, Petitioner filed a Petition for Termination of Compensation*fn2 with the Bureau of Worker's Compensation alleging that Employee had fully recovered from her injury and was able to return to her employment. After a hearing, the referee suspended compensation, finding that Employee was capable of light work and that such work was currently available. Employee appealed to the Board, which reversed the referee's suspension of compensation and dismissed the Petition for Termination of Compensation, thus reinstating compensation benefits to the Employee. Petitioner now appeals from the Board's order of reversal.

Where the party with the burden of proof has prevailed before the referee and the Board has taken no additional evidence, this Court's scope of review is limited to a determination of whether an error of law was committed, or whether any findings of fact necessary to support the adjudication are not supported by substantial evidence. Elliot v. Workmen's Compensation Appeal Board (C.S. Engineers, Inc.), 72 Pa. Commonwealth Ct. 195, 455 A.2d 1299 (1983). In a petition to terminate or modify compensation, the burden is upon the employer to establish that disability has ended or has been reduced and that (1) work is available to claimant and (2) claimant is capable of doing such work. Coastal Tank Lines, Inc. v. Workmen's Compensation Appeal Board (John H. Swick),

[ 79 Pa. Commw. Page 64172]

Pa. Commonwealth Ct. 308, 457 A.2d 149 (1983); State Products Corp. v. Workmen's Compensation Appeal Board, 61 Pa. Commonwealth Ct. 366, 434 A.2d 207 (1981).

After a careful review of the evidence presented before the referee in this case, we are constrained to agree with the Board that there was no evidence which would support the finding that Employee had recovered from her disability and was capable of performing work.

The only medical evidence in this case was supplied by Dr. E. Larry Hanson, Employee's treating physician, who testified that Employee was unable to use her right arm as a result of severe pain which she had been experiencing. Dr. Hanson indicated that treatment undertaken to alleviate the pain, which included ribresection surgery and various medications, has proved to be unsuccessful. Throughout his testimony, Dr. Hanson consistently and ...


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