Appeal from the Order of the Workmen's Compensation Appeal Board in case of Paul Datsuk v. Booth & Flinn Company, No. A-68252.
Joseph Hakun, with him Frederick L. Fuges, and MacCoy, Evans & Lewis, for appellants.
Joseph D. Shein, with him Shein & Brookman, P.A., and James N. Diefenderfer, for appellees.
Judges Kramer, Rogers and Blatt, sitting as a panel of three. Opinion by Judge Blatt.
[ 18 Pa. Commw. Page 370]
This is an appeal from a decision of the Workmen's Compensation Appeal Board (board) which affirmed a referee's award of benefits to Paul Datsuk (claimant).
The claimant injured his back in an accident at work on October 13, 1960 and entered into a compensation agreement with his employer, Booth and Flinn Company, on November 9, 1960 for the payment of workmen's compensation benefits for total disability. On October 11, 1961 the employer filed a petition for modification and, after conducting hearings, a referee concluded that the claimant's disability was reduced to a 50% partial disability. On appeal the board affirmed this decision.
The 350 week period for payment of partial disability benefits expired on January 4, 1968 and on March 18, 1968 the claimant filed a reinstatement petition alleging that he was again totally disabled. Following a series of hearings, a referee awarded payments on February 26, 1974 for total disability, and the board affirmed. The employer has now appealed to this Court.
[ 18 Pa. Commw. Page 371]
As we have often stated, our scope of review is limited here to a determination of whether or not constitutional rights were violated, an error of law was committed, or any necessary finding of fact was unsupported by substantial competent evidence. Page's Department Store v. Workmen's Compensation Appeal Board, 11 Pa. Commonwealth Ct. 126, 309 A.2d 169 (1973).
The claimant here, as the moving party, has the burden of proving, not only that he is totally disabled, but that the condition created by the accident for which he is entitled to compensation has changed from its previously determined extent. Pardee v. Erie City Iron Works, 9 Pa. Commonwealth Ct. 253, 305 A.2d 741 (1973). A modification or reinstatement proceeding cannot be used to relitigate the percentage of disability determined in a prior award. Schrader & Seyfried, Inc. v. Cerny, 7 Pa. Commonwealth Ct. 659, 301 A.2d 125 (1973). The proper, and only, method of attacking an erroneous decision of a referee or the board is by a timely appeal. See Banks v. Workmen's Compensation Appeal Board, 15 Pa. Commonwealth Ct. 373, 327 A.2d 404 (1974).
The evidence presented by the claimant here in support of his petition for reinstatement indicated that the pain which he was continuing to suffer as a result of the accident was in some measure attributable to a psychiatric disorder. Years before, when it had been determined that the claimant was 50% disabled, his disability was explained entirely on an anatomical basis. Doctor Emil Harasym, who testified on the claimant's behalf in a hearing on the petition for reinstatement, explained that the claimant's condition should have improved after eight years but that it had failed to do so because of a traumatic neurosis syndrome. Dr. Maurice D. Pressman, who ...