83 Pa. Commw. 151 | Pa. Commw. Ct. | 1984
Opinion bt
Charlotte Page (claimant) appeals here an order of the Workmen’s Compensation Appeal Board which terminated her benefits.
On July 24, 1979, the claimant was injured in the course of her employment as a food server at the Mercy Hospital (employer). She remained off from work and received compensation, then returned to work for a period, and then, pursuant to a Supplemental Agreement dated May 5, 1980, she was deemed totally disabled on April 9, 1980 and again began receiving benefits. On September 16, 1980, the employer filed a termination petition, presumably
Section 413 of the Act, 77 P.S. §772, provides in part:
A referee designated by the department may, at any time, modify, reinstate, suspend, or terminate a notice of compensation payable, an*153 original or supplemental agreement or an award of the department or its referee, upon petition filed by either party with the department, upon proof that the disability of an injured employe has increased, decreased, recurred, or has temporarily or finally ceased, or that the status of any dependent has changed.
In a termination petition case, the employer bears the burden of proving that (a) the claimant’s disability has ended, or (b) has been reduced and that work is available to the claimant which he is capable of doing. Shenango, Inc. v. Workmen’s Compensation Appeal Board (Del Brocco), 67 Pa. Commonwealth Ct. 500, 447 A.2d 717 (1982). And, of course, when, as here, the party with the burden of proof has prevailed before the Board, our scope of review is limited to determining whether or not constitutional rights were violated, errors of law were committed, or necessary findings of fact are unsupported by substantial evidence. Schiavo v. Workmen’s Compensation Appeal Board, 68 Pa. Commonwealth Ct. 479, 449 A.2d 816 (1982). Our Supreme Court, furthermore, has defined substantial evidence as such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Republic Steel Corp. v. Workmen’s Compensation Appeal Board, 492 Pa. 1, 5, 421 A.2d 1060, 1062 (1980).
The claimant contends that the Board capriciously disregarded competent evidence in concluding that she had fully recovered. Our review of the record, however, indicates that there is substantial evidence to support the Board’s conclusions. Dr. Howard Finkelhor, who testified for the employer, opined that, based upon his review of the claimant’s history as well as on his own independent examinations, the claimant was fully recovered from her injury of July 1978.
The claimant next contends that there was insufficient evidence to support a finding that there was suitable work for her, citing to our decision in 4156 Bar Corp. v. Workmen’s Compensation Appeal Board, 63 Pa. Commonwealth Ct. 176, 438 A.2d 657 (1981), where we held, inter alia, that a claimant seeking total disability benefits must show by credible evidence that he can no longer perform his work because of a work related injury and, once this is established, the burden shifts to the employer to show that the claimant can perform certain work and that such work is available. Id. at 181, 438 A.2d at 659. Inasmuch as this case involves a petition to terminate, the claimant’s reliance on 4156 Bar Corp. is consequently misplaced. As stated above, Shenango, Inc. articulates the legal test to be applied to the questions presented sub judice, and we believe that the aforementioned testimony of
We will, therefore, affirm the order of the Board.
Order
And Now, this 7th day of June, 1984, the order of the Workmen’s Compensation Appeal Board in the above-captioned matter is hereby affirmed.
We cannot state unequivocally what particular section of the Act the employer filed under because neither the briefs nor the record discloses this information.
See the Deposition of Dr. Howard B. Finklehor at 16-17.
See the Deposition of Dr. Richard L. Ray at 11.
See the Deposition of Dr. George McCollum at 18.
Claimant also contends, citing Dill Products v. Workmen’s Compensation Appeal Board, 42 Pa. Commonwealth Ct. 563, 401 A. 2d 409 (1979), that the “unusual pathological result doctrine” warrants a reversal here. After reviewing our decision in Dill Products, we dismiss this contention for want of legal merit.