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BARNES AND TUCKER COMPANY v. COMMONWEALTH PENNSYLVANIA (12/08/78)

decided: December 8, 1978.

BARNES AND TUCKER COMPANY, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, WORKMEN'S COMPENSATION APPEAL BOARD AND ENRICO MORO, RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in case of Enrico Moro v. Barnes & Tucker Company, No. A-73710.

COUNSEL

Robert G. Rose, with him Spence, Custer, Saylor, Wolfe & Rose, for petitioner.

Blair V. Pawlowski, with him Gerard Long, for respondent.

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

Author: Wilkinson

[ 39 Pa. Commw. Page 124]

This case comes before us on appeal from a decision of the Workmen's Compensation Appeal Board (Board) affirming the referee's determination that the effective date for modification of respondent's (hereinafter claimant) disability compensation is the date on which the petition to modify the disability is presented rather than the date on which such change is shown by the proofs to have occurred. We reverse.

The underlying facts are not disputed. On February 28, 1975, claimant sustained a crush injury of his right hand resulting in an award for total disability as of March 1, 1975. As a result of rehabilitative treatment, claimant's doctor determined that as of February 17, 1976, claimant's disability had decreased to 50

[ 39 Pa. Commw. Page 125]

    percent partial disability. On January 10, 1977, petitioner filed a modification petition based upon the report of claimant's physician. Although the referee found claimant's disability to have changed to one of 50 percent partial disability on February 17, 1976, he concluded that claimant's disability compensation should be modified to reflect the change as of January 10, 1977, the filing date of petitioner's modification petition.

The lone narrow issue presented in this case is one of law concerning the effective date for modifying disability compensation pursuant to the second paragraph of Section 413(a) of The Pennsylvania Workmen's Compensation Act (Act), Act of June 2, 1915, P.L. 736, as amended, 77 P.S. ยง 772, which reads in pertinent part:

A referee designated by the department may, at any time, modify, reinstate, suspend, or terminate a notice of compensation payable, an original or supplemental agreement or an award of the department or its referee, upon petition filed by either party with the department, upon proof that the disability of an injured employe has increased, decreased, recurred, or has temporarily or finally ceased, or that the status of any dependent has changed. Such modification, reinstatement, suspension, or termination shall be made as of the date upon which it is shown that the disability of the injured employe has increased, decreased, recurred, or has temporarily or finally ceased, or upon which it is shown that the status of any dependent has changed. . . .

The problem presented by the statutory language set out above is the date the statute intended modification to be ...


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