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WALTER BIGLER v. WORKMEN'S COMPENSATION APPEAL BOARD (BRISTOL TOWNSHIP) (05/01/86)

decided: May 1, 1986.

WALTER BIGLER, PETITIONER
v.
WORKMEN'S COMPENSATION APPEAL BOARD (BRISTOL TOWNSHIP), RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in the case of Walter Bigler v. Bristol Township, No. A-84977.

COUNSEL

Walter D. Campbell, for petitioner.

Howard M. Ellner, for respondent, Bristol Township.

Judges Craig, Barry, and Palladino, sitting as a panel of three. Opinion by Judge Barry.

Author: Barry

[ 96 Pa. Commw. Page 643]

This appeal results from an order of the Workmen's Compensation Appeal Board (Board) which affirmed

[ 96 Pa. Commw. Page 644]

    the decision of a referee suspending benefits to the claimant, Walter Bigler.

Plaintiff was employed as a work crew foreman for Bristol Township's road department. While in the scope and course of his employment the claimant suffered a fall resulting in significant neck pain. Following an initial hospital confinement, the claimant returned to work, but on December 18, 1978, or three months after the fall, claimant ceased work due to continuing pain. A notice of compensation payable was thereafter executed on January 1, 1979.

On December 8, 1980, the employer filed a termination petition alleging that the claimant had recovered from his work-related injury and could resume employment without any loss of earning capacity. The claimant in his answer denied the foregoing averments, alleging that he was still totally disabled from the injury.

Conflicting medical testimony was presented by employer and claimant. Dr. Richard H. Rothman, claimant's personal physician, testified that claimant was still permanently and totally disabled, though basing that diagnosis entirely upon the subjective complaints of the claimant. Dr. Parvis Kambin testified on behalf of the employer that claimant had recovered from his injury and could return to his occupation as a foreman. Dr. Kambin's testimony was based upon a review of claimant's records, x-rays, his own examination, and his viewing of motion pictures taken by a private detective, in which claimant was portrayed engaging in various physical acts, at odds with his own statements to both physicians as to his physical agility. After personally viewing the films and considering the expert and lay testimony, the referee granted the termination petition, ordering at the same time that the petition was to be treated as one for suspension. The appeal board thereafter affirmed the decision suspending compensation. It is from this decision that the claimant appeals.

[ 96 Pa. Commw. Page 645]

Undertaking our review function, we note that in a termination petition case such as the one before us the employer bears the burden of proving that the claimant's disability has ended. See Page v. Workmen's Compensation Appeal Board (Mercy Hospital of Pittsburgh), 83 Pa. Commonwealth Ct. 151, 153, 476 A.2d 508, 509 (1984). Our scope of review is limited to determining whether constitutional rights were violated, ...


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