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WILKES-BARRE IRON & WIRE WORKS v. WORKMEN'S COMPENSATION APPEAL BOARD AND RICHARD I. MEYERS (09/10/73)

decided: September 10, 1973.

WILKES-BARRE IRON & WIRE WORKS, INC. AND PENNSYLVANIA MANUFACTURERS' ASSOCIATION INSURANCE COMPANY, INSURANCE CARRIER, APPELLANTS,
v.
WORKMEN'S COMPENSATION APPEAL BOARD AND RICHARD I. MEYERS, APPELLEES



Appeal from the Order of the Workmen's Compensation Appeal Board in case of Richard I. Meyers v. Wilkes-Barre Iron & Wire Works, Inc. and Pennsylvania Manufacturers' Association Insurance Company, Insurance Carrier, No. A-66125.

COUNSEL

James P. Harris, Jr., with him Harris, Johnston & Maguire, for appellants.

A. Peter Kanjorski, Jr., for appellees.

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

Author: Mencer

[ 9 Pa. Commw. Page 613]

On July 25, 1967, the claimant, Richard I. Meyers, suffered a severe injury to his lower right leg while

[ 9 Pa. Commw. Page 614]

    in the course of his employment with the Wilkes-Barre Iron and Wire Works, Inc. On August 15, 1967, claimant and his employer entered into an open agreement for compensation providing for total disability payments under The Pennsylvania Workmen's Compensation Act.*fn1 The agreement was approved by the Workmen's Compensation Board and payments were made accordingly.

On March 9, 1971, the employer filed a petition for modification, alleging that claimant's disability was limited to the industrial loss of his lower right leg. Following two hearings, the Workmen's Compensation Referee found continuing total disability and, in effect, dismissed the petition for modification. On appeal, the Workmen's Compensation Appeal Board (Board), without hearing new evidence, amended the determination of the Referee and held that the claimant had a continuing permanent partial disability and modified the open agreement accordingly. The employer then filed this appeal and we affirm the Board.

The party seeking to modify a compensation agreement has the burden of establishing the allegations upon which he relies. Where, as here, the decision of the Board is against the party having the burden of proof, the question on appellate review is whether the findings of fact*fn2 are consistent with each other and with the Board's conclusions of law and its order and can be sustained without a capricious disregard of competent evidence. Sherred v. Pittsburgh, 7 Pa. Commonwealth Ct. 401, 299 A.2d 381 (1973). "To constitute a capricious

[ 9 Pa. Commw. Page 615]

    disregard there must be a wilful and deliberate disregard of competent testimony and relevant evidence which one of ordinary intelligence could not possibly have avoided in reaching the result." Brown v. Atlantic and Gulf Stevedores, Inc., 2 Pa. Commonwealth Ct. 481, 483, 279 A.2d 372, 373 (1971).

The employer contends in this appeal that the claimant's injury is limited to the permanent loss of his lower right leg and, therefore, is a specific loss under Section 306(c) of The Workmen's Compensation Act, as amended, 77 P.S. ยง 513, and compensable in accord with the limits of Section 306(c).*fn3 ...


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