25 Pa. Commw. 311 | Pa. Commw. Ct. | 1976
Opinion by
Following an injury that occurred during the course of his employment as a police officer, Rodney A. McIntosh (claimant) has continued to receive, during his recuperation, his salary from the Borough of Pleasant Hills (Borough). The Borough, pursuant to the provisions of Section 1 of the Act of June 28, 1935, P.L. 477, as amended (Heart and Lung Act), 53 P.S. §637, has been receiving claimant’s workmen’s compensation benefits from the Northwestern National Insurance Group (Insurer). On October 19, 1974, Insurer tendered its last payment to the Borough. Then, on October 24, 1974, Insurer filed a petition for termination, alleging claimant’s ability to return to work on October 14, 1974.
After several hearings, a referee denied Insurer’s termination petition and ordered Insurer to continue
Insurer, as the party petitioning to terminate the compensation agreement, was required to carry the burden of proving that claimant was no longer entitled to disability compensation. Workmen’s Compensation Appeal Board v. Mushroom Transportation Company, 18 Pa. Commonwealth Ct. 177, 334 A.2d 788 (1975). Therefore, because the decision was against the party bearing the burden of proof, our review is limited to a determination of whether the findings of fact are consistent with each other and with the conclusions of law and whether they can he sustained without a capricious disregard of competent evidence. Workmen’s Compensation Appeal Board v. Mushroom Transportation Company, supra.
Insurer, pointing to this Court’s opinions in Workmen’s Compensation Appeal Board v. Mifflin-Juniata State Health Foundation, 19 Pa. Commonwealth Ct. 133, 338 A.2d 691 (1975), and Workmen’s Compensation Appeal Board v. Guzman, 18 Pa. Commonwealth Ct. 275, 334 A.2d 852 (1975), contends that the testimony of its physician, Dr. Charles F. Berg, was sufficient, as a matter of law, to sustain its burden of proof and that, pursuant to Anderson v. Independent Pier Co., 13 Pa. Commonwealth Ct. 268, 320 A.2d 925 (1974), claimant was then required to come forward with rebutting evidence, a task Insurer contends claimant failed to carry out. Initially, we note that both Mifflin-Juniata and Guzman merely held that the respective petitioners’ physician witnesses’ testimony was, under the circumstances of those cases, enough to support the referees’ findings that disability had terminated. In the instant case, the referee found that the disability continued. Additionally, Anderson merely reviewed the Board’s analysis under
Here the referee did not capriciously disregard competent evidence in finding a continuation of the disability, for the claimant himself and his physician witness both testified as to the continuation of the disability. The resolution of the conflict between the testimony for Insurer and the testimony for claimant was for the referee. We, as a reviewing appellate court, are required by law to leave the resolution of questions of credibility to factfinders. Workmen’s Compensation Appeal Board v. Inter-State Tile and Mantel Co., Inc., 20 Pa. Commonwealth Ct. 178, 341 A.2d 218 (1975).
Insurer also objects to the claimant’s use of the Borough’s counsel before the referee and to the Borough’s adverse stance to Insurer’s petition. Insurer urges, under alleged equitable principles, that the Borough be denied subrogation. However, Insurer misconstrues the law. We are not here confronted with equitable subrogation in the traditional sense or as otherwise provided under The Pennsylvania Workmens Compensation Act.
Therefore, we issue the following
Order
And Now, this 25th day of June, 1976, the order of the Workmen’s Compensation Appeal Board affirming a referee’s denial of the termination petition of the Northwestern National Insurance Group, affirming the referee’s order of continuation of benefits payable to the Borough of Pleasant Hills with interest of 10 percent on deferred payments, and affirming the referee’s order granting medical expenses previously not paid, is hereby affirmed.
Insurer lias since pursued all steps of this litigation in the name of the Borough when, in actuality, the Borough has had an interest adverse to Insurer in the outcome of at least part of the litigation.
Act of June 2, 1915, P.L. 786, as amended, 77 P.S. §1 et seq.