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WORKMEN'S COMPENSATION APPEAL BOARD AND JOSEPH H. ROONEY v. HOST MOTEL WILKES-BARRE (03/12/75)

decided: March 12, 1975.

WORKMEN'S COMPENSATION APPEAL BOARD AND JOSEPH H. ROONEY, APPELLEES,
v.
THE HOST MOTEL OF WILKES-BARRE, INC. AND AETNA CASUALTY & SURETY COMPANY, INSURANCE CARRIER, APPELLANTS



Appeal from the Order of the Workmen's Compensation Appeal Board in case of Joseph H. Rooney v. The Host of Wilkes-Barre, Inc., No. F.M. 3464.

COUNSEL

John H. Appleton, with him Irwin Schneider, and Nogi, O'Malley & Harris, for appellant.

James N. Diefenderfer, for appellee, Board.

Joseph H. Rooney, appellee, for himself.

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

Author: Bowman

[ 17 Pa. Commw. Page 625]

The parties are in agreement on the facts of this case. As a result of a compensable back injury that occurred in 1971, claimant-appellee and employer-appellant entered into a compensation agreement pursuant to which claimant-appellee was paid compensation based on total disability. Approximately two years after the accident, employer-appellant filed a petition to modify the compensation agreement averring disability had decreased to 40%. Claimant-appellee opposed the petition to modify claiming total disability still existed. After a hearing, the Workmen's Compensation referee found that claimant-appellee

[ 17 Pa. Commw. Page 626]

    was in fact totally disabled and dismissed employer-appellant's petition. No appeal was taken from this decision.

Approximately two months later, claimant-appellee filed a petition for further medical services which the employer-appellant opposed. After a hearing before the Workmen's Compensation Appeal Board, the Board, on July 12, 1974, ordered claimant-appellee's petition be granted in an amount not to exceed $200.00. On January 7, 1975, this order was amended to not exceed a period of six months to bring the order "in line with" this Court's decision in Truck and Trailer Equipment Inc. v. Workmen's Compensation Appeal Board, 14 Pa. Commonwealth Ct. 272, 322 A.2d 393 (1974). Employer-appellant now appeals, arguing that claimant-appellee has not established by competent proof that he was entitled to additional medical services. We must agree.

We find that the evidence on this record in support of claimant-appellee's petition to be almost non-existent. The doctor's affidavit attached to the petition reads as follows:

"Dr. V. Berardis, being duly sworn according to law, deposes and says that in his opinion further medical care will result in restoring the injured employe's earning power to a substantial degree, and the estimated total cost of further medical services covering [ illegible ] weeks will amount to ...


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