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PATRICIA BANKS v. WORKMEN'S COMPENSATION APPEAL BOARD (10/24/74)

decided: October 24, 1974.

PATRICIA BANKS, WIDOW OF CLAIR D. BANKS, APPELLANT,
v.
WORKMEN'S COMPENSATION APPEAL BOARD, F.E. COOPER LUMBER CORPORATION, AND PENNSYLVANIA MANUFACTURERS' ASSOCIATION INSURANCE COMPANY, INSURANCE CARRIER, APPELLEES



Appeal from the Order of the Workmen's Compensation Appeal Board in case of Clair D. Banks v. F.E. Cooper Lumber Corporation, No. A-67564.

COUNSEL

T. Dean Lower, for appellant.

James S. Routch, with him Patterson, Evey, Routch & Black and James N. Diefenderfer, for appellees.

Judges Kramer, Mencer and Blatt, sitting as a panel of three. Opinion by Judge Mencer.

Author: Mencer

[ 15 Pa. Commw. Page 374]

This is an appeal by the personal representative of Clair D. Banks (Banks)*fn1 from a decision of the Workmen's Compensation Appeal Board (Board) affirming

[ 15 Pa. Commw. Page 375]

    a referee's modification of compensation benefits based on a finding that Banks' disability had decreased from total disability of 25% partial disability as of July 26, 1971.

On May 17, 1967, Banks fractured his right hand in an accident while in the course of his employment as a general laborer with the F.E. Cooper Lumber Corporation (Cooper). Shortly thereafter the parties entered into a compensation agreement providing for weekly benefits for total disability. Payments were made under this agreement until July 1, 1968.

August 5, 1968, Cooper and its insurance carrier filed a petition for termination or modification of compensation, asserting that Banks was no longer disabled as a result of his accident. A hearing was held before a referee who, on March 8, 1971, issued an order dismissing Cooper's petition and ordering the resumption of payments for total disability from July 1, 1968.*fn2

Compensation payments were made by Cooper pursuant to this order until July 26, 1971. On August 2, 1971, Cooper filed a second petition for termination or modification of compensation, claiming that Banks' disability was not total. This time Cooper's petition was granted by a referee who issued an order modifying compensation benefits based on a finding that Banks' disability had been reduced from total disability to 25% partial disability as of July 26, 1971. The referee's order was affirmed by the Board, and the present appeal followed.

Our scope of review in this type of case in which the party having the burden of proof ...


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