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MUENZ v. KELSO BEACH IMPROVEMENT ASSOCIATION. (07/17/56)

July 17, 1956

MUENZ, APPELLANT,
v.
KELSO BEACH IMPROVEMENT ASSOCIATION.



Appeal, No. 50, April T., 1956, from order of Court of Common Pleas of Erie County, Feb. T., 1954, No. 335, in case of George A. Muenz v. Kelso Beach Improvement Association. Order reversed.

COUNSEL

Paul A. Stephany, for appellant.

John E. Britton and Gifford, Graham, MacDonald & Illig, for appellee.

Before Rhodes, P.j., Hirt, Gunther, Wright, Woodside, Ervin, and Carr, JJ.

Author: Rhodes

[ 181 Pa. Super. Page 107]

OPINION BY RHODES, P.J.

This is a workmen's compensation case in which the controverted question is whether claimant's total disability changed to partial.

On July 17, 1952, claimant sustained an accidental injury in the course of his employment with defendant. He was employed as a guard, and his duty was to collect a fee from motorists entering defendant's premises which were operated as a resort on Lake Erie. In attempting to avoid a starting vehicle, upon which he had placed the required toll ticket, he was injured. An open compensation agreement for total disability was entered into between defendant and claimant, and approved. Claimant was paid compensation for total disability from July 25, 1952, to January 2, 1953, when payments were discontinued by defendant. Thereafter, on April 17, 1953, defendant filed a petition for modification of the compensation agreement, alleging that claimant's disability had changed from total to partial.

At the hearing before a referee the president of the defendant association and a medical witness called by it testified. Claimant presented no evidence. The referee found that claimant's disability had changed from total to 25 per cent partial on October 19, 1952. He granted defendant's petition for modification and allowed a credit to defendant for the payments made from October 19, 1952, to January 2, 1953.

On appeal by claimant the Workmen's Compensation Board set aside the referee's fourth and fifth findings of fact, made new findings, sustained claimant's appeal, and dismissed defendant's petition to modify. Defendant then appealed to the Court of Common Pleas of Erie County which reversed the order of the board and remanded the case for reinstatement of the

[ 181 Pa. Super. Page 108]

    referee's findings except as they provided for credit for prior payments which credit the court disallowed. On reargument the court affirmed its original opinion. Claimant has appealed to this Court from the order of the court below.

The burden of proof was on defendant which was seeking modification of the compensation agreement; and it was obliged to establish in the first instance that the disability of claimant had changed from total to partial, and the extent of that change. Barckhoff v. Westmoreland Coal Co., 161 Pa. Superior Ct. 146, 148, 53 A.2d 872. Since, according to the board, defendant had not met this burden, the question arises whether the board's findings of fact are consistent with each other, with its conclusions of law, and with its order, and whether ...


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