31 Pa. Commw. 643 | Pa. Commw. Ct. | 1977
Opinion by
The Bali Bra Manufacturing Company (Bali) and its insurance carrier have appealed from an order of the Workmen’s Compensation Appeal Board (Board) which affirmed a referee’s dismissal of Bali’s petition to terminate workmen’s compensation benefits. The awardee had sustained a back injury on August 3, 1973 while employed by Bali and had entered into a.
The employer has the burden of proving that an employe’s disability has ceased, and, where the employer has not prevailed below, our scope of review is limited to a determination of whether or not the findings of fact are consistent with each other and with the conclusions of law and whether or not these findings can be sustained without a capricious disregard of competent evidence. Workmen’s Compensation Appeal Board v. Kelly Steel Erectors, Inc., 25 Pa. Commonwealth Ct. 329, 361 A.2d 478 (1976).
Our review of the record here confirms that certain medical reports were sent to the referee by counsel for the awardee and that the referee admitted these reports into evidence, apparently without providing Bali’s counsel with an opportunity to object to their admission. Although these reports cannot be considered competent evidence on which the referee could base his findings of fact, in view of our limited scope of review, we must nevertheless affirm the referee, if his findings can be sustained on the basis of other competent evidence and without a capricious disregard of Bali’s evidence to the contrary.
We have carefully reviewed the record in this case, and we are unable to conclude that either the referee or the Board capriciously disregarded competent evidence in finding that the awardee’s disability had not terminated. The decision of the Board is, therefore, affirmed.
And Now, this 19th day of September, 1977, the order of the Workmen’s Compensation Appeal Board, dismissing the petition to terminate benefits to Jane Frombaeh, is hereby affirmed.
Bali’s counsel did not object to tbe physician’s testimony that the awardee experiences pain. Testimony based on a doctor’s personal observation that a patient suffers pain is competent evidence which may be weighed by the fact-finder. Laurelli v. Shapiro, 416 Pa. 308, 206 A.2d 308 (1965).