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MARGARET S. ADAMO v. WORKMEN'S COMPENSATION APPEAL BOARD (JAMESON MEMORIAL HOSPITAL) (01/25/85)

decided: January 25, 1985.

MARGARET S. ADAMO, PETITIONER
v.
WORKMEN'S COMPENSATION APPEAL BOARD (JAMESON MEMORIAL HOSPITAL), RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in the case of Margaret S. Adamo v. Jameson Memorial Hospital, No. A-82406.

COUNSEL

Dominick Motto, Chambers, Nicolls, Balph, Paul & Motto, for petitioner.

Richard E. Flannery, Mansell, McKee, Mitsos & Flannery, for respondents.

Judges Williams, Jr., Barry and Colins, sitting as a panel of three. Opinion by Judge Barry.

Author: Barry

[ 87 Pa. Commw. Page 208]

This appeal results from an order of the Workmen's Compensation Appeal Board (Board) affirming an order of a referee which granted a termination petition of Jameson Memorial Hospital (employer), thereby terminating benefits to claimant Margaret S. Adamo.

Claimant was injured in a fall at work in February, 1976, damaging her shoulder and rendering her totally disabled. She began collecting benefits pursuant to a notice of compensation payable. While the shoulder was healing, she developed chronic cervical strain in the neck which has resulted in a continuation of her total disability. In March, 1977, by which time the

[ 87 Pa. Commw. Page 209]

    shoulder had healed, the employer filed a petition to terminate benefits. Following a hearing, the referee found that claimant was still totally disabled and the disability was causally related to the fall at work. The latter conclusion was based on the testimony of claimant's medical expert. The Board reversed, however, holding that the testimony of claimant's expert was equivocal and therefore incapable of sustaining the finding that the neck injury was caused by the 1976 fall at work. On appeal, we agreed that the testimony in question was equivocal; however, as the burden of proof on a termination petition rests with the employer, Childrens Aid & Family Services v. Workmen's Compensation Appeal Board, 53 Pa. Commonwealth Ct. 379, 417 A.2d 1297 (1980), we remanded because "[w]e cannot assume, therefore, as did the Board, that the referee's decision was based on the legally incompetent testimony of Dr. Weiner, for it may have been based on the possible insufficiency or lack of credibility of the employer's medical evidence." Adamo v. Workmen's Compensation Appeal Board, 56 Pa. Commonwealth Ct. 530, 534, 425 A.2d 63, 65 (1981).

Upon remand, the referee made the following findings of fact.

1. Claimant was injured on February 6, 1976 when she fell and landed on her left shoulder.

2. Claimant was disabled as a result of said injury from 2/6/76 thru March 28, 1977 at which time all disability relating to her shoulder ceased and terminated.

3. Dr. Gerald Weiner, Orthopedic Surgeon and treating physician, testified that he cannot say with certainty that the cervical strain was causally related to the injury but ...


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