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HARRY HALLORAN CONSTRUCTION CO. AND LIBERTY MUTUAL INSURANCE CO. v. COMMONWEALTH PENNSYLVANIA (12/18/78)

decided: December 18, 1978.

HARRY HALLORAN CONSTRUCTION CO. AND LIBERTY MUTUAL INSURANCE CO., PETITIONERS
v.
COMMONWEALTH OF PENNSYLVANIA, WORKMEN'S COMPENSATION APPEAL BOARD AND LOUIS ANDERSON, RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in case of Louis Anderson v. Harry Halloran Construction Co., No. A-72798.

COUNSEL

Susan McLaughlin, with her Joseph R. Thompson, for petitioners.

Harry Cohen, with him James N. Diefenderfer, for respondents.

Judges Mencer, DiSalle and MacPhail, sitting as a panel of three. Opinion by Judge Mencer. Dissenting Opinion by Judge DiSalle.

Author: Mencer

[ 39 Pa. Commw. Page 273]

Harry Halloran Construction Company (employer) appeals from an order of the Workmen's Compensation Appeal Board (Board) reinstating compensation payable to Louis Anderson (claimant) for a back injury suffered on October 18, 1973. Since the claimant failed to introduce any evidence that his disability had increased or recurred after the date of a prior award terminating compensation, we are compelled to reverse.

The back injury which claimant suffered on October 18, 1973, in the course of his employment, was diagnosed as a disc-type injury. He was paid compensation for this injury from October 19, 1973 until May 16, 1975. On May 20, 1975, the employer filed a petition for termination, pursuant to Section 413 of The Pennsylvania Workmen's Compensation Act (Act), Act of June 2, 1915, P.L. 736, as amended, 77 P.S. ยง 772. In support of its petition, the employer submitted a report of a physician who had examined the claimant and concluded that he was capable of returning to his former position. A hearing was scheduled for September 2, 1975, at which the claimant failed to appear. An order terminating all benefits was entered by the referee on September 25, 1975. and mailed to the claimant on October 18, 1975. On December 22, 1975, the claimant attempted to file an appeal with

[ 39 Pa. Commw. Page 274]

    the Board. Upon motion of the employer, this appeal was quashed as untimely. No further appeal was taken by the claimant.

Four months later, on April 20, 1976, the claimant filed a petition for reinstatement, also pursuant to Section 413 of the Act. Hearings were held on June 30, 1976 and December 9, 1976. Evidence received by the referee included the claimant's testimony and the deposition of claimant's physician. The evidence indicated that on May 19, 1976, a test known as a lumbar myelogram was performed on the claimant and revealed a defect in the claimant's back suggestive of a disc-type injury. Based on this evidence, the referee found that claimant's total disability had "recurred" on May 19, 1976, the date of the myelogram, and benefits were reinstated. The Board affirmed, and this appeal followed.

It is well established that a claimant's petition under Section 413 for reinstatement or modification of a prior award must be supported by evidence that the disability has recurred or increased after the date of the prior award. See, e.g., Cerny v. Schrader & Seyfried, Inc., 463 Pa. 20, 342 A.2d 384 (1975); Airco-Speer Electronics v. Workmen's Compensation Appeal Board, 17 Pa. Commonwealth Ct. 539, 333 A.2d 508 (1975). A claimant cannot attempt to relitigate the extent of his disability as determined in the prior award. Workmen's Compensation Appeal Board v. Booth & Flinn Co., 18 Pa. Commonwealth Ct. 369, 336 A.2d 448 (1975). Thus, the issue here is whether the referee's finding that claimant's disability "recurred" on May 19, 1976, is supported by substantial evidence. See Harman Coal Co. v. Dunmyre, 474 Pa. 610, 379 A.2d 533 (1977).

We do not believe that the referee's finding is supported by the evidence. The claimant did not testify that his pain had ...


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