19 Pa. Commw. 413 | Pa. Commw. Ct. | 1975
Opinion by
This is the appeal of F. W. Woolwo'rth Company and its insurance carrier from an order of the Workmen’s Compensation Appeal Board (Board)-, affirming the referee’s denial of appellants’ petition to terminate a compensation agreement with Adelia Mialka.
Ms. Mialka was injured on June 8, 1968 when, while working as a salesclerk in one of the employer’s retail stores, a glass shelf fell, striking and cutting the back of her right hand. A compensation agreement was entered into by the employer, its insurance carrier and Ms. Mialka providing for total disability payments of $40.20 per week, commencing as of August 19, 1968, and for medical and hospital expenses within the limits prescribed by the Workmen’s Compensation Act.
The referee denied the prayer of the petition for termination, finding that the medical testimony established that the flapping was psychosomatic and that it was as a result of Ms. Mialka’s accident of July 8, 1968. The Board affirmed and noted that the carrier had failed to meet its burden of proof by offering no medical testimony to divorce the flapping from the July 8th injury. Appellants have appealed, principally on the asserted ground that the referee’s findings relating the flapping to the accident are not supported by competent evidence.
Section 413 of the Workmen’s Compensation Act, as amended, 77 P.S. §772 (Supp. 1974-1975), provides the statutory authority for termination of a compensation agreement. Thereunder, an employer and its carrier petitioning for termination have the burden of proving that disability has “. . . temporarily or finally ceased. . . .” See Tioga Textiles Associates, Inc. v. Workmen’s Compensation Appeal Board, 13 Pa. Commonwealth Ct. 492, 319 A.2d 211 (1974); Penn Paper and Stock Co. v. Workmen’s Compensation Appeal Board, 9 Pa. Commonwealth Ct. 250, 305 A.2d 740 (1973). The burden is considerable, for disability is presumed to continue until demonstrated otherwise. Lackman v. F. W. Woohvorth Company, 205 Pa. Superior Ct. 129, 208 A.2d 33 (1965); Fox v. American News Co., 190 Pa. Superior Ct. 74, 151 A.2d 670 (1959).
The employer and its carrier simply failed to carry their burden of proof. As they note in their brief, Dr. Mainzer “never testified that in his opinion it [the flapping] was related [to Ms. Mialka’s injury].” Nor did he say it was unrelated. Having presented no proof of the absence of causal connection between the injury and the flapping of the appellee’s right hand, the appellants were required to demonstrate cessation of the disability in order to prevail. Their only showing in this regard was that no organic cause can be found for the flapping. This was wholly inadequate. See, e.g., Pomeroy’s, Inc. v. Workmen’s Compensation Appeal Board, supra; Fox v. American Netvs Co., supra.
Ms. Mialka aptly cites the following language from Barrett v. Otis Elevator Company, 431 Pa. 446, 246 A.2d 668 (1968), in support of affirmance of the instant referee’s crucial findings:
“A finding that is completely unsupported by competent evidence does not capriciously disregard competent evidence if there is not competent evidence to support a contrary finding.” 431 Pa. at 451, 246 A.2d at 671.
And Now, this 2nd day of June, 1975, the order of the Workmen’s Compensation Appeal Board is affirmed and F.W. Woolworth Company and Travelers Insurance Company, its insurance carrier, are directed to pay to Adelia Mialka, compensation for total disability at the rate of $40.20 per week, as per the compensation agreement of the parties of August 23, 1968, beginning as of May 22, 1970 and continuing thereafter during total disability; together with interest at the rate of six (6%) percent per annum on all unpaid installments from the due date thereof.
. Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §1 et seq.
. Appellants misapprehend our scope of review. It is only in cases where the party with the burden of proof is successful below that our review focuses on whether the necessary findings of fact are supported by substantial evidence. Banks v. Workmen’s Compensation Appeal Board, 15 Pa. Commonwealth Ct. 373, 327 A.2d 404 (1974).