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JERRY GREEN & SONS v. COMMONWEALTH PENNSYLVANIA (12/17/81)

decided: December 17, 1981.

JERRY GREEN & SONS, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, WORKMEN'S COMPENSATION APPEAL BOARD AND ROBERT E. DACENZO, RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in the case of Robert E. Dacenzo v. Jerry Green & Sons, No. A-78081.

COUNSEL

Leonard S. Lipson, with him Alfred Sarowitz, for petitioner.

Alexander B. Giacobetti, for respondent, Robert E. Dacenzo.

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

Author: Blatt

[ 63 Pa. Commw. Page 264]

This is an appeal from an order of the Workmen's Compensation Board (Board) affirming an order of the referee which reinstated compensation benefits to Robert E. Dacenzo (claimant) as of October 13, 1975.

On October 4, 1974, the claimant, a roofer by trade, sustained a compensible work-related injury when, while in the employ of Jerry Green & Sons (employer), he was struck on the back by the tailgate of a truck and he received compensation benefits from that date. On February 5, 1975, the employer filed a termination petition and at the hearing which followed the claimant stated that he had not yet fully recovered from the effects of his injury and that he had been unable to obtain full employment as a roofer because of the limitations on his ability to work as well as because of poor economic conditions in the industry. He was then receiving unemployment compensation. In response to the request of the employer and its insurance carrier, and as agreed to by the claimant, the referee considered

[ 63 Pa. Commw. Page 265]

    the petition as one for suspension of benefits, rather than for termination thereof, while awaiting resolution of the status of the claimant's injury and its effect, if any, upon his future earnings or earning power.

The claimant attempted to return to work thereafter but was able to work only intermittently due either to the presence of pain or to the unavailability of work. On October 13, 1975, while working for Frank Jamison Roofing, the claimant squatted down to pull an "E" box and was unable to raise himself because of pain in his lower back as a result of which he was hospitalized from October 27, 1975 until November 9, 1975. On November 21, 1975, he was again hospitalized and placed in traction following an episode at home during which he blacked-out from back pain and struck his head in the subsequent fall. He has not worked since the October 13, 1975 incident. On October 18, 1979, following a hearing, the referee ordered compensation benefits reinstated as of October 13, 1975. The Board affirmed and this appeal by the employer followed.

Our scope of review is limited here to a determination of whether or not constitutional rights were violated, an error of law was committed, or any necessary finding of fact was unsupported by substantial evidence. Workmen's Compensation Appeal Board v. Booth & Flinn Co., 18 Pa. Commonwealth Ct. 369, 336 A.2d 448 (1975). The claimant here, as the moving party, had the burden of proving by precise and credible evidence of a more definite and specific nature than that upon which initial compensation was based, that he was totally disabled and that the condition created by the accident for which he is entitled to compensation has changed from its previously determined extent. Pittsburgh Des Moines Steel Co. v. Workmen's Compensation Appeal Board, 31 Pa. Commonwealth Ct. 530, 377 A.2d 833 (1977). To prevail in his reinstatement

[ 63 Pa. Commw. Page 266]

    petition, he was required to show that his disability had recurred. Section 413 of The Pennsylvania Workmen's Compensation Act, Act of June 2, ...


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