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WORKMEN'S COMPENSATION APPEAL BOARD AND JOHN W. MYERS v. INTER-STATE TILE AND MANTEL CO. (07/09/75)

decided: July 9, 1975.

WORKMEN'S COMPENSATION APPEAL BOARD AND JOHN W. MYERS, APPELLEES,
v.
INTER-STATE TILE AND MANTEL CO., INC., APPELLANT



Appeal from the Order of the Workmen's Compensation Appeal Board in case of John W. Myers v. Inter-State Tile and Mantel Co., Inc., No. A-68330.

COUNSEL

Ronald M. Katzman, with him Goldberg, Evans & Katzman, for appellant.

John J. Krafsig, Jr., with him James N. Diefenderfer, for appellees.

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

Author: Mencer

[ 20 Pa. Commw. Page 180]

In July 1967, John W. Myers (claimant) suffered a compensable injury while in the course of his employment. Since that time he has been receiving compensation benefits through various agreements entered into with Inter-State Tile and Mantel Co., Inc. (appellant). In October 1973, appellant filed a petition for termination of compensation, alleging that claimant's condition had improved to the point where he could now be fully employed. After a hearing, the referee found that claimant was now only subject to a partial disability. The Workmen's Compensation Appeal Board (Board) reversed the referee and held that claimant continued to be totally disabled. This appeal followed.

The main issue in this case is whether the appellant sustained before the referee its burden of proving that work which claimant was capable of doing was available to claimant. See Barrett v. Otis Elevator Company, 431 Pa. 446, 246 A.2d 668 (1968).

It is now a well-settled principle of law, recognized by both parties to this proceeding, that, on a petition to modify (or terminate) filed by an employer, the burden is on the employer to prove that claimant's disability is no longer total. The party seeking to modify the agreement has the burden of establishing the allegations upon which the relies. VanHorn v. Workmen's Compensation Appeal Board, 12 Pa. Commonwealth Ct. 473, 316 A.2d 686 (1974). Claimant contends that his employer has not met this burden, and of course appellant claims that it has.

In workmen's compensation cases where, as here, the party bearing the burden of proof prevailed before the

[ 20 Pa. Commw. Page 181]

    referee and the Board took no additional evidence, our scope of review is limited to a determination of whether or not the findings of the referee are supported by substantial competent evidence and whether there has been an error of law or a violation of constitutional rights. David v. Bellevue Locust Garage, 12 Pa. Commonwealth Ct. 602, 317 A.2d 341 (1974). While the Board may consider questions of law, it may not disregard the referee's findings when they are supported by substantial competent evidence. Id.*fn1

Having closely reviewed the testimony, we are of the opinion that the appellant has met its burden of proof. The referee properly modified the finding of total disability to a finding of partial disability, and the Board wrongly and improperly found a lack of substantial competent evidence in the record and reversed the referee.

Claimant and the Board in essence attacked the referee's findings of only partial disability on the premise that there was not substantial competent evidence to support his deduction that claimant was physically capable of participating in a sedentary type of ...


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