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decided: July 7, 1975.



Carl A. Niehoff, Lehighton, for appellant.

Robert Lazorchick, Scott & Lazorchick, Lansford, for appellees.

Jones, C. J., and Eagen, O'Brien, Pomeroy, Nix and Manderino, JJ. Roberts, J., took no part in the consideration or decision of this case. Pomeroy and Nix, JJ., concur in the result.

Author: Eagen

[ 463 Pa. Page 22]


Thomas Cerny, while in the employment of Schrader and Seyfried, Inc., [Schrader] suffered a compensable accident on March 29, 1962, when a sewer trench in which he had been working collapsed upon him. Thereafter, by agreement, compensation for total disability at $47.50 per week was paid Cerny until he returned to work on June 26, 1962. However, because of his injuries, Cerny could not perform his usual work and was, therefore, given light duties. On September 21, 1962, Cerny was laid off. He has not worked since that time.

On November 1, 1962, Schrader petitioned the Workmen's Compensation Board to terminate the compensation agreement, alleging that all disability had ceased as of June 15, 1962. After a hearing, the Workmen's Compensation

[ 463 Pa. Page 23]

Referee modified the compensation agreement to provide for the payment of compensation for 75% partial disability at the maximum of $37.50 per week beginning September 21, 1962. The Board subsequently affirmed the Referee's determination and no further appeal was then entered.

On June 5, 1969, Cerny's 350 week period for partial disability payments ended. On August 15, 1969, Cerny timely petitioned the Board to modify the compensation agreement alleging his disability had increased to total. After a hearing the Referee denied Cerny's petition. Without deciding whether Cerny had established an increase in disability,*fn1 the Referee determined Cerny was not totally disabled because he was able to engage in light work. The Board, however, set aside the Referee's decision and awarded Cerny total disability benefits. Although it, too, failed to decide whether Cerny had established an increase in disability,*fn2 the Board, relying upon our decision in Barrett v. Otis Elevator Company, 431 Pa. 446, 246 A.2d 668 (1968), granted Cerny relief because Schrader had failed to prove light work was available which Cerny was capable of obtaining. Schrader then appealed to the Commonwealth Court which reversed the Board ruling, that Cerny had failed to establish an increase in disability. We then granted allocatur.

Cerny's petition for modification of compensation was filed under Section 413 of The Pennsylvania

[ 463 Pa. Page 24]

Workmen's Compensation Act.*fn3 This provision, in effect, at the time Cerny filed the instant petition, read as follows:

"The board, or referee designated by the board, may, at any time, modify, reinstate, suspend, or terminate an original or supplemental agreement or an award, upon petition filed by either party with such board, upon proof that the disability of an injured employe has increased, decreased, recurred, or has temporarily or finally ceased, or that the status of any dependent has changed. Such modification, reinstatement, suspension, or termination shall be made as of the date upon which it is shown that the disability of the injured employe has increased, decreased, recurred, or has temporarily or finally ceased . . . ."

Under this provision, it was Cerny's burden, as movant, to prove that his disability had increased after the date of the Referee's award for partial disability on September 21, 1962. Airco-Speer Electronics v. Workmen's Compensation Appeal Board, 17 Pa. Commw. 539, 333 A.2d 508 (1975); Banks v. Workmen's Compensation Appeal Board, 15 Pa. Commw. 373, 327 A.2d 404 (1974); Henderson v. Air Master Corporation, 2 Pa. Commw. 275, 276 A.2d 581 (1971).

[ 463 Pa. Page 25]

However, while it was Cerny's burden to prove an increase in disability after September 21, 1962, he did not have the burden of also proving he was totally disabled, that is, incapable of performing any job. In a related area, that of initial application for a compensation award, we have ruled, "once the claimant has discharged his burden of proving that, because of his injury, he is unable to do the type of work he was engaged in when injured, the employer has the burden of proving that other work is available to the claimant which he is capable of obtaining." Barrett v. Otis Elevator Company, supra, 431 Pa. at 458, 246 A.2d at 674. See also Petrone v. Page 25} Moffat Coal Company, 427 Pa. 5, 233 A.2d 891 (1967); Kirk v. L. Bauer, Jr., Inc., 209 Pa. Super. 357, 228 A.2d 228 (1967). We imposed this burden upon the employer because, in our view, "it certainly is more difficult to prove conclusively that no jobs are available than to prove conclusively that a job is available". [Emphasis in original.] Barrett v. Otis Elevator Company, supra, 431 Pa. at 455, 246 A.2d at 673.*fn4 We believe the same allocation of burdens of proof should apply to modification proceedings. Therefore, we rule that the claimant in a modification proceeding, alleging total disability, initially has the burden of proving an increase in disability and that he is incapable of performing his regular employment. Once having met this burden a finding of total disability is warranted unless the employer discharges his burden of proving that work is available which the claimant is capable of obtaining.

As noted previously, neither the Referee nor the Board determined whether Cerny had established an increase in disability; each premising its determination upon the availability or non-availability of light work for Cerny. Therefore, we vacate the Order of the Commonwealth Court and remand the record to the Workmen's Compensation Board so that it may decide whether an increase in Cerny's disability has been established.*fn5 If

[ 463 Pa. Page 26]

    the Board determines that Cerny has met his burden of proving his disability increased after September 21, 1962, then, since Schrader has failed to establish work other than his own type of employment was available to Cerny, an award for total disability should be entered. If, however, the Board determines that an increase in disability has not been proven, then a judgment for Schrader should follow.

It is so ordered.

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