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CARLOS W. KLINGLER v. COMMONWEALTH PENNSYLVANIA (04/08/80)

decided: April 8, 1980.

CARLOS W. KLINGLER, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, WORKMEN'S COMPENSATION APPEAL BOARD, WILLIAM RUPERT AND SECURITY INSURANCE GROUP, RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in case of Carlos W. Klingler v. William Rupert, No. A-74283.

COUNSEL

James Bukac, for petitioner.

Elmer G. Klaber, for respondents, William Rupert and Security Insurance Group.

Judges Crumlish, Jr., Mencer and MacPhail, sitting as a panel of three. Opinion by Judge Mencer. President Judge Bowman and Judge DiSalle did not participate in the decision in this case.

Author: Mencer

[ 50 Pa. Commw. Page 336]

Carlos W. Klingler (claimant) appeals from an order of the Workmen's Compensation Appeal Board (Board), which affirmed the dismissal of his modification petition.

Claimant suffered a work-related heart attack on April 17, 1960 and was awarded total disability payments. In 1967, William N. Rupert (employer) filed a modification petition. On November 5, 1970, the referee, after several hearings and pursuant to a stipulation entered into by counsel for both parties, granted the petition and awarded maximum partial disability

[ 50 Pa. Commw. Page 337]

    compensation to claimant, commencing January 17, 1969. No appeal was filed from that decision, but, in 1975, when the time limit for the partial disability was reached, claimant filed a modification petition alleging (1) that claimant has suffered a recurrence of total disability and, (2) in the alternative, that the 1970 award was null and void and, therefore, the total disability award should be reinstated. From the dismissal of these arguments by the Board, claimant's appeal to this court followed.

Claimant's first argument that he has established a recurrence of total disability is without merit. The burden is on claimant to establish by substantial evidence that the disability has "recurred or increased after the date of the prior award." Harry Halloran Construction Co. v. Workmen's Compensation Appeal Board, 39 Pa. Commonwealth Ct. 272, 274, 395 A.2d 325, 326 (1978) (emphasis in original). Moreover, this proof must be made "by precise and credible evidence which [is] of a more definite and specific nature than that upon which initial compensation is based." Pittsburgh Des Moines Steel Co. v. Workmen's Compensation Appeal Board, 31 Pa. Commonwealth Ct. 530, 534, 377 A.2d 833, 835 (1977).

Claimant here relies on medical testimony adduced at hearings in 1967, 1962 and 1961, all of which were prior to the 1970 partial disability determination. Furthermore, claimant admitted that he suffered from other ailments.*fn1 In view of the factual situation, we must conclude that claimant's failure to produce medical testimony establishing a change from partial to total disability requires us to reject his argument. See Morgan v. Giant Markets, Inc., 483 Pa. 421, 397 A.2d 415 (1979).

[ 50 Pa. Commw. Page 338]

Claimant argues in the alternative that the stipulation entered into by counsel for claimant and employer, with respect to the 1970 award, constitutes an illegal settlement or compromise of an existing claim, in violation of Section 407 of The Pennsylvania Workmen's Compensation Act (Act), Act of June 2, 1915, P.L. 736, as ...


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