PETITION FOR REVIEW (WORKMEN'S COMPENSATION).
Glenn D. Hains, Durben & Hains, P.C., Newtown, for petitioner.
Peter J. Weber, and Lynn G. Levy, Rawle & Henderson, Philadelphia, for Monarch Circuit Ind.
Thomas W. Harrigan, Stack & Gallagher, P.C., Philadelphia, for Delbert Barats.
Crumlish, Jr., President Judge, and Colins, J., and Narick, Senior Judge.
[ 128 Pa. Commw. Page 20]
East West Equipment Company (East West) appeals a Workmen's Compensation Appeal Board order affirming the referee's decision and denying its petition to terminate benefits to Delbert Barats. We reverse and remand.
In January 1978, Barats suffered a back injury while working for East West and received benefits. He subsequently returned to light-duty work for another employer, Monarch Circuit Industries, Inc. (Monarch), and again sustained a back injury in July 1980. Monarch executed a notice of compensation payable for this latter injury. Both employers subsequently filed termination petitions which were consolidated for disposition.*fn1 The referee originally denied both termination petitions and apportioned liability for Barats' post-July 1980 disability equally between East West and Monarch.
[ 128 Pa. Commw. Page 21]
The Board reversed the referee's decision and, on remand, the referee determined that the July 1980 injury constituted a recurrence of the January 1978 injury and deemed East West solely responsible. The Board then affirmed and additionally disposed of Monarch's petition by denying its termination petition but granting a suspension of its obligation to pay benefits.
East West initially contends that the referee's finding on remand that Barats sustained a recurrence of his January 1978 back injury is unsupported by the record. East West maintains that Dr. Thomas Javian, Jr., whose testimony the referee credited in its entirety, consistently opined that Barats' post-July 1980 disability was caused by both work injuries. East West further argues that the referee was precluded from finding a recurrence of the first injury once he found that a second injury had occurred for which Monarch had executed a notice of compensation payable. Monarch counters that the Board correctly denied East West's termination petition but erred in relying on Dr. Javian's equivocal testimony as to causation and erroneously denied its termination petition.
A party seeking to terminate workmen's compensation benefits bears the burden of proving either that the work-related disability has ceased or that the continued disability is the result of an independent cause. McGee v. L.F. Grammes & Sons, 477 Pa. 143, 383 A.2d 864 (1978). In this dispute between former and current employers, East West attempted to show that Barats' post-July 1980 disability was an "aggravation" of his prior injury, thus imposing liability on Monarch, the employer at the time the aggravation occurred, Bud Smail Lincoln Mercury v. Workmen's Compensation Appeal Board, 59 Pa. Commonwealth Ct. 638, 430 A.2d 719 (1981). Conversely, Monarch presented evidence that Barats suffered a "recurrence" of disability making East West liable. ...