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.
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
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
Workmen's Compensation Act.*fn3 This provision, in effect, at the time Cerny filed the instant ...