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HARMAR COAL COMPANY AND OLD REPUBLIC COMPANIES v. WORKMEN'S COMPENSATION APPEAL BOARD AND JAMES C. DUNMYRE (05/03/77)

decided: May 3, 1977.

HARMAR COAL COMPANY AND OLD REPUBLIC COMPANIES, PETITIONERS
v.
WORKMEN'S COMPENSATION APPEAL BOARD AND JAMES C. DUNMYRE, RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in cases of James C. Dunmyre v. Harmar Coal Company, No. A-70379.

COUNSEL

Paul E. Sutter, with him George H. Thompson, Michael D. McDowell, and Hirsch, Weise & Tillman, for petitioners.

J. Scott Leckie, with him Kenneth J. Yablonski, and James N. Diefenderfer, for respondents.

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

Author: Blatt

[ 30 Pa. Commw. Page 65]

This is an appeal by the Harmar Coal Company (employer) from a decision of the Workmen's Compensation Appeal Board (Board) which affirmed a referee's reinstatement of compensation for total disability to James C. Dunmyre (claimant).

The claimant had suffered a work-related injury on May 15, 1967 and had been awarded compensation for total disability. On May 15, 1969, however, after the employer's petition for modification of benefits, a referee reduced benefits to the claimant to 50% disability as of November 28, 1967. A subsequent appeal to the

[ 30 Pa. Commw. Page 66]

Board was withdrawn by the parties, thereby rendering the referee's award final.

On March 5, 1974, the claimant filed a petition with the Board alleging that his disability resulting from the 1967 injury had then become total and permanent, and the referee, having found that the claimant's disability had changed from a partial disability of 50% to a total and permanent disability, and that the disability was attributable to the 1967 accident, then ordered a reinstatement of benefits.*fn1 The Board affirmed this award. The employer then appealed to this Court on the basis that "the referee's finding that the claimant's disability had increased from 50 per cent disability to total disability is unsupported by substantial evidence."

It is clear that the moving party has the burden of proof, Henderson v. Air Master Corp., 2 Pa. Commonwealth Ct. 275, 276 A.2d 581 (1971), and where, as here, such party has prevailed below, our scope of review is limited to a determination of whether or not constitutional rights were violated, an error of law was committed or any necessary finding of fact was not supported by substantial evidence. Airco-Speer Electronics v. Workmen's Compensation Appeal Board, 17 Pa. Commonwealth Ct. 539, 333 A.2d 508 (1975). Moreover, we have held that

[t]estimony which is so uncertain or inadequate or equivocal or ambiguous or contradictory as to make a verdict of a jury or findings of a trial judge or the findings of an administrative fact finder mere conjectures is not adequate in lawsuits ...


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