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JOSEPH H. WARR v. COMMONWEALTH PENNSYLVANIA (09/01/78)

decided: September 1, 1978.

JOSEPH H. WARR, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, WORKMEN'S COMPENSATION APPEAL BOARD AND ZURN INDUSTRIES, RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in case of Joseph H. Warr v. Zurn Industries, No. A-70800.

COUNSEL

John M. Quinn, Jr., with him Quinn, Gent, Buseck and Leemhuis, Inc., for petitioner.

Howard N. Plate, with him Plate, Doyle, Hutzelman and Berlin, and James N. Diefenderfer, for respondents.

Judges Crumlish, Jr., Blatt and DiSalle, sitting as a panel of three. Opinion by Judge Crumlish, Jr.

Author: Crumlish

[ 37 Pa. Commw. Page 371]

Joseph H. Warr (Claimant) has appealed the decision of the Workmen's Compensation Appeal Board which affirmed the referee's dismissal of his petition

[ 37 Pa. Commw. Page 372]

    for modification of an earlier benefits award. Claimant had sought to have an award of 50% partial disability modified to total disability. We affirm.

A brief review of the complex history is necessary. Claimant slipped and fell while at work at Zurn Industries, Inc. (Company) on June 14, 1965, injuring his lower back and neck. The parties entered into a compensation agreement which was supplemented and amended several times in manners not here relevant. In January, 1968, the Company's insurance carrier filed a termination petition which was granted by the referee. However, on July 24, 1969, the Board reversed the referee, and found as fact that Claimant was suffering a 50% anatomic disability, but suspended the Company's obligation to make payments on the condition that it make a suitable job available to Claimant. Compensation was subsequently reinstated as of August 20, 1970, under a stipulation incorporated into a referee's award. In June, 1973, Claimant filed this petition, alleging that he was totally disabled as of June 1, 1971, which date he subsequently amended to December 13, 1972. Testimony was adduced from two physicians on behalf of the Company and one who testified for Claimant. In his decision, the referee found that any change which had occurred in the amount of Claimant's disability was not caused by a deterioration of the condition created by the accident of June 14, 1965, but rather was due to unrelated causes. The petition was dismissed. The Board affirmed and Claimant brought the case here.

It is settled beyond question that our review in workmen's compensation cases is limited to a determination of whether constitutional rights were violated, an error of law was committed or any necessary findings of fact are unsupported by substantial evidence. Universal Cyclops Steel Corp. v. Krawczynski,

[ 37 Pa. Commw. Page 3739]

Pa. Commonwealth Ct. 176, 305 A.2d 757 (1973). An employee seeking to modify a workmen's compensation agreement from one for partial disability benefits to one for total disability has the burden of proving not only that he is totally disabled but that the condition created by the accident giving rise to the right to compensation has changed from the extent determined by the original agreement. Pardee v. Erie City Iron Works, 9 Pa. Commonwealth Ct. 253, 305 A.2d 741 (1973). When, as here, the Board's decision is against the party with the burden of proof, we may reverse only if we conclude that the findings are inconsistent with one another or with the conclusions of law or that the Board capriciously disregarded competent evidence. Rice v. A. Steiert & Sons, Inc., 8 Pa. Commonwealth Ct. 264, 301 A.2d 919 (1973).

We find no inconsistency in the referee's findings or between the findings and the conclusions (which the Board affirmed) and, after thoroughly reviewing the testimony of the three physicians, cannot conclude that the referee or the Board capriciously disregarded competent evidence. Claimant relies upon Workmen's Compensation Appeal Board v. Winkleman, 19 Pa. Commonwealth Ct. 33, 339 A.2d 647 (1973), in which we held that a referee's disregard of uncontradicted and unequivocal medical testimony concerning the causal connection between an injury and a subsequent disability constitutes a capricious disregard of competent ...


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