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PAUL WERTZ v. WORKMEN'S COMPENSATION APPEAL BOARD (FERRO CORPORATION) (07/23/85)

decided: July 23, 1985.

PAUL WERTZ, PETITIONER
v.
WORKMEN'S COMPENSATION APPEAL BOARD (FERRO CORPORATION), RESPONDENT



Appeal from the Order of the Workmen's Compensation Appeal Board in case of Paul Wertz v. Ferro Corporation, No. A-82998.

COUNSEL

James A. Villanova, for petitioner.

P. Ronald Cooper, Reding, Rea & Cooper, P.C., for respondent, Ferro Corporation.

Judges MacPhail and Colins, and Senior Judge Blatt, sitting as a panel of three. Opinion by Judge Blatt.

Author: Blatt

[ 90 Pa. Commw. Page 516]

Paul Wertz (claimant) appeals here an order of the Workmen's Compensation Appeal Board (Board) which affirmed a referee's decision granting a Termination Petition filed by Ferro Corporation (employer) and setting aside the pertinent notice of compensation payable.

The record indicates that, on May 19, 1980, the claimant sustained a lumbar sprain or injury to his lower back in the course of his employment; that he returned to work on May 20, 1980 without any loss of earning power; that, upon his return to work, his job duties changed from a working foreman to one who is restricted to supervisory tasks; that he continued to work until October 11, 1980 when he found it necessary to stop because of pain in his neck and arms which was subsequently diagnosed as a cervical

[ 90 Pa. Commw. Page 517]

    nerve root compression; that a notice of compensation payable describing his May 19 work-injury as a cervical nerve root compression was entered between the employer and claimant on February 9, 1981; and that the employer subsequently filed a Termination Petition in March 1981. The referee further found that the claimant's work-injury was a sprained lower back and not a cervical nerve root compression as stated on the notice of compensation payable and, that the claimant's present disability was not causally related to the back injury sustained in the course of employment. He, therefore, set aside the notice of compensation payable and granted the employer a credit equaling the amount of benefits paid to the claimant between October 11, 1980 and March 5, 1981, to be applied against any future benefits awarded the claimant.*fn1 The referee also granted the employer's Termination Petition, holding that the back injury sustained by claimant on May 19 had ceased.

The claimant argues here only that the referee capriciously disregarded competent evidence in granting the Termination Petition. We note preliminarily, however, that it is the employer who bears the burden of proof in a termination proceeding. Cox v. Workmen's Compensation Appeal Board, 60 Pa. Commonwealth Ct. 59, 430 A.2d 1009 (1981), and when the party who bears the burden of proof prevails below, our scope of review is limited to determining whether or not constitutional rights were violated, an error of law was committed or a necessary finding of fact was

[ 90 Pa. Commw. Page 518]

    unsupported by substantial evidence. Id. Additionally, the employer filing a Termination Petition bears the burden of establishing that all work-related disability has ceased. Id.

Dr. David E. Foss testified on behalf of the employer that he had treated the claimant in late May, 1980 at which time the claimant told him that he had been injured at work and that he was currently suffering from pain in his lower back and legs. Following an examination, Dr. Foss diagnosed his injury as an acute sprain of the lumbar region of the spine or lower back. Dr. Foss also testified that the claimant had not complained of neck pain in the course of his treatment. Additionally, the claimant testified that he was uncertain as to which part of his back he injured at work on May 19 although he did state that he experienced no neck or arm pain until late August. Dr. Eric Minde, who also testified on behalf of the employer, stated that when he examined the claimant on March 5, 1981, the sprain to his lower back had healed and he further testified that any disability suffered by the claimant at that time was not causally related to the May 19 work injury. The claimant, of course, did present expert medical testimony in support of his contention that his neck or upper back pain was causally related to the lower back injury he received at work on May 19. As we have repeatedly stated, however, the referee may reject the testimony of even an expert, Bowes v. Inter-Community Action, Inc., 49 Pa. Commonwealth Ct. 612, 411 A.2d 1279 (1980), and ...


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