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AIRCO-SPEER ELECTRONICS AND LIBERTY MUTUAL INSURANCE COMPANY v. WORKMEN'S COMPENSATION APPEAL BOARD AND RUTH F. PERRY (03/06/75)

decided: March 6, 1975.

AIRCO-SPEER ELECTRONICS AND LIBERTY MUTUAL INSURANCE COMPANY, INSURANCE CARRIER, APPELLANTS,
v.
WORKMEN'S COMPENSATION APPEAL BOARD AND RUTH F. PERRY, APPELLEES



Appeal from the Order of the Workmen's Compensation Appeal Board in case of Ruth F. Perry v. Airco-Speer Electronics, No. A-67035.

COUNSEL

Richard H. Scobell, for appellant.

Anthony H. Chambers, with him Chambers & Crisman, and James N. Diefenderfer, for appellees.

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

Author: Mencer

[ 17 Pa. Commw. Page 540]

This is an appeal by Airco Speer Electronics and its insurance carrier, Liberty Mutual Insurance Company, (appellants) from a decision of the Workmen's Compensation Appeal Board (Board) affirming a referee's modification of compensation benefits owing to Ruth F. Perry (claimant).

Claimant had been employed by Airco Speer Electronics for approximately 19 years when, on August 20, 1970, she injured her back in an accident which occurred in the course of her employment. Shortly thereafter, the parties entered into a compensation agreement pursuant to The Pennsylvania Workmen's Compensation Act,*fn1 providing for weekly benefits for total disability, at the rate of $60 per week.

Payments were made under this agreement until January 11, 1972. On February 2, 1972, appellants filed a petition to terminate compensation, alleging that claimant's disability ceased on January 11, 1972. A hearing was held on this petition, and a referee, on August 2, 1972, dismissed the petition and reinstated the compensation agreement in a modified form providing for compensation for total disability from January 11, 1972 until March 24, 1972 and for partial disability after that date. No appeal was taken from this award.

[ 17 Pa. Commw. Page 541]

On October 18, 1972, claimant filed a petition to modify the award of August 2, 1972, alleging that her disability had increased to 100 percent as of October 6, 1972. A referee, after a hearing, granted claimant's petition and awarded compensation for total disability from October 6, 1972. The referee's award 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 has prevailed below*fn2 is limited to a determination of whether constitutional rights were violated, an error of law was committed, or any necessary finding of fact was not supported by substantial evidence. See Panther Valley School District v. Workmen's Compensation Appeal Board, 13 Pa. Commonwealth Ct. 178, 318 A.2d 403 (1974).

Appellants show their knowledge of our narrow scope of review by arguing that the referee's finding of total disability is not supported by substantial evidence in the record. We agree and, therefore, reverse.

Claimant's petition for modification of compensation was filed under the second paragraph of Section 413 of The Pennsylvania Workmen's Compensation Act, 77 P.S. ยง 772 (Supp. 1974-1975). This provision reads in pertinent part as follows: "A referee designated by the department may, at any time, modify, reinstate, suspend, or terminate a notice of compensation payable, an original or supplemental agreement or an award of the department or its referee, upon petition filed by either party with the department, upon proof that the disability of an injured employe has increased, decreased, recurred, or has temporarily or finally ceased, or that the status of ...


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