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REDWOOD ENTERPRISES v. DARABANT AND WORKMEN'S COMPENSATION APPEAL BOARD (01/05/73)

decided: January 5, 1973.

REDWOOD ENTERPRISES, D/B/A REDWOOD MOTOR HOTEL, ET AL.
v.
DARABANT AND WORKMEN'S COMPENSATION APPEAL BOARD



Appeal from the Order of the Workmen's Compensation Appeal Board in case of Lorraine Darabant v. Redwood Enterprises, d/b/a Redwood Motor Hotel and Employers-Commercial Union Companies, successor to Employers' Liability Assurance Corp., Ltd.

COUNSEL

W. Theodore Brooks, with him Reding, Blackstone, Rea & Sell, for appellants.

Alexander J. Pentecost, for appellee.

Judges Crumlish, Jr., Wilkinson, Jr., and Mencer, sitting as a panel of three. Opinion by Judge Wilkinson.

Author: Wilkinson

[ 7 Pa. Commw. Page 422]

Able counsel for appellants and appellee are in entire agreement on the law applicable to this case. In particular, they agree that claimant-appellee had the burden before the Referee and the Board to establish that her condition had changed from 50% partial disability on August 25, 1966, to 100% total disability on September 2, 1970. The Referee and the Board found that she had met this burden with competent evidence. Our careful review of the record leads us to the same conclusion and we affirm.

Claimant-appellee suffered a compensable accident on October 4, 1965. She continued to work until December 16, 1965, when the injury became disabling. A total disability agreement was entered into on March 31, 1966. On October 4, 1966, employer-appellant and insurance carrier filed a Petition for Termination. After an answer was filed on October 26, 1966, hearings were held on August 9, 1967, and September 7, 1967. It was then stipulated between the parties on October 11, 1967, which stipulation subsequently was the basis for findings of fact and an award filed on

[ 7 Pa. Commw. Page 423]

October 19, 1967, that as of August 25, 1966, claimant-appellee was 50% disabled. On July 5, 1969, claimant-appellee filed a petition to review the existing agreement, reduced to 50% disability as indicated above, alleging in the petition that she was then totally disabled. On January 13, 1971, and March 25, 1971, hearings were held and testimony taken. Claimant-appellee and her doctor testified that her condition at the time of the petition and hearings had worsened and had deteriorated since October of 1967, and that she was now totally disabled. It is interesting to note that claimant-appellee's physician testified that in his opinion she was totally disabled both in 1967 and at the time of the hearing in this proceeding but, nevertheless, her condition was worse now than then. The employer-appellant offered the testimony of two competent physicians.

This case was well presented to the Referee and the Board. The record is short and to the point in issue. The briefs and arguments were commendably the same. The Referee and the Board could have found either way and there would have been competent testimony to support them.

Obviously, the key question is whether claimant-appellee's condition has worsened since the stipulation of 50% disability. Joseph Henderson v. Air Master Corporation, 2 Pa. Commonwealth Ct. 275, 276 A.2d 581 (1971). She has the burden on this point. Hendricks v. Patterson, 164 Pa. Superior Ct. 584, 67 A.2d 652 (1949). There certainly was a conflict of testimony, but in such a circumstance, the Board, even as a jury, must be the fact-finding body and not this Court. Harascak v. Department of Highways, 217 Pa. Superior Ct. 138, 269 A.2d 329 (1970).

We are not unmindful, although not pressed in the briefs or on argument, that there ...


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