Appeal from the Order of the Workmen's Compensation Appeal Board in case of Anthony DeMontis, by Pauline DeMontis, his widow, v. Holy Cross Cemetery, No. A-70368.
Gerald J. Haas, for appellant.
Charles W. Craven, with him Marshall, Dennehey & Warner, and James N. Diefenderfer, for respondents.
Judges Crumlish, Jr., Kramer and Rogers, sitting as a panel of three.
[ 34 Pa. Commw. Page 227]
On May 24, 1967, Anthony DeMontis, then 67 years old, was seriously injured while employed as a gravedigger by the Holy Cross Cemetery in Yeadon, Pennsylvania. On June 7, 1967, Mr. DeMontis executed a workmen's compensation agreement for total disability, and compensation was paid him under this agreement through May 1, 1968. On May 2, 1968, Mr. DeMontis and his employer entered into a supplemental agreement stating that he was able to return to work with a 35% disability and providing partial disability compensation in the amount of $23.52 a week. These payments continued until January 4, 1973, on which date Mr. DeMontis died.
On August 24, 1973, Pauline DeMontis, widow of Anthony DeMontis, filed a Fatal Claim Petition, which was granted by a referee, whose decision was affirmed by the Workmen's Compensation Appeal Board. The Board's order was not appealed by the employer and the Fatal Claim award is not a subject of the instant appeal.
At the same time that she filed the Fatal Claim Petition, Mrs. DeMontis filed a petition for review and modification of the June 13, 1968 supplemental agreement
[ 34 Pa. Commw. Page 228]
under Section 413 of The Pennsylvania Workmen's Compensation Act*fn1 (Act), 77 P.S. §§ 771 and 772, alleging, inter alia, that the 35% partial disability recited in the supplemental agreement was incorrect, that the agreement should be corrected to provide compensation for total disability, and that the difference between the amount payable for total disability after May 2, 1968 and until Mr. DeMontis' death and the amount paid him during his lifetime should be awarded to her, his widow. The referee dismissed the petition for the reasons, inter alia, (1) that the surviving widow lacked standing to claim benefits for disability which might have been claimed by her husband during his lifetime, and (2) that the widow had failed to carry her burden of proving that the supplemental agreement was incorrect. The Board affirmed, holding that the Act does not authorize a petition for review and modification of a partial disability compensation agreement upon petition of a widow filed after the employe's death. Mrs. DeMontis appealed. We affirm the Board.
Although her Petition for review and modification has language appropriate to a claim under both subsections (a) and (b) of Section 413, the appellant in this appeal relies only on Subsection (a), 77 P.S. § 771, which reads:
A referee of the department may, at any time, review and modify or set aside a notice of compensation payable and an original or supplemental agreement or upon petition filed by either party with the department, or in the course of the proceedings under any petition pending before such referee, if it be proved that such ...