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MICHELE MANCINI v. COMMONWEALTH PENNSYLVANIA (02/09/82)

decided: February 9, 1982.

MICHELE MANCINI, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, WORKMEN'S COMPENSATION APPEAL BOARD AND SALDUTTI & BELFATTI, RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in case of Michele Mancini v. Saldutti & Belfatti, No. A-72572.

COUNSEL

William F. Sweeney, with him John F. Ledwith, Schubert, Mallon, Walheim & deCindis, for petitioner.

Spencer A. Manthorpe, Hepburn, Ross, Willcox & Putnam, for respondent, Saldutti & Belfatti.

Judges Rogers, Blatt and Williams, Jr., sitting as a panel of three. Opinion by Judge Rogers. Judge Palladino did not participate in the decision in this case.

Author: Rogers

[ 64 Pa. Commw. Page 485]

Michele Mancini suffered an injury to his back in 1966 when he fell from a ladder in the course of his

[ 64 Pa. Commw. Page 486]

    employment. He here appeals from an order of the Workmen's Compensation Appeal Board reversing the action of a referee granting the prayer of Mancini's petition that an award to him of compensation for partial disability be modified so as to provide compensation for total disability. Because we conclude that the referee's order approving compensation for total disability was proper, we reverse the Board's order.

Mancini and his employer entered into a compensation agreement in 1966 pursuant to The Pennsylvania Workmen's Compensation Act,*fn1 providing compensation for total disability on account of Mancini's injury. Later the employer filed a petition for termination of the agreement based on its allegation that Mancini had refused reasonable medical care.*fn2 This petition was resolved by a referee's award of compensation for partial disability of February 17, 1970, which order was the result of a stipulation of the parties that Mancini was totally disabled but that he refused medical care which would have reduced his disability to ten per cent. The amount of the award was calculated appropriately for a ten per cent disability.*fn3 No appeal from this order was taken.

Near the end of the then applicable statutory compensation period of 350 weeks, Mancini filed his modification petition alleging that he is totally disabled and unable to work. The referee who heard this application found in Mancini's favor and entered an order awarding compensation for total disability. The

[ 64 Pa. Commw. Page 487]

    employer appealed to the Board, which reversed. This appeal followed.

One seeking to modify an award or agreement for compensation must produce competent evidence of a change in the workman's physical condition occurring since the date of the award or agreement.*fn4 Airco-Speer Electronics v. Workmen's Compensation Appeal Board, 17 Pa. Commonwealth Ct. 539, 333 A.2d 508 (1975). The party seeking modification has the burden of proof. Cerny v. Schrader & Seyfried, Inc., 463 Pa. 20, 342 A.2d 384 (1975). Where the party bearing the burden of proof prevailed before the referee, and the Board took no additional evidence, our review is limited to determining whether there has been a violation of constitutional rights, an error of law committed or whether any necessary finding of fact is unsupported by substantial evidence. David v. Bellevue Locust Garage, 12 Pa. Commonwealth Ct. 602, 317 A.2d 341 (1974). "Under the Act, the referee is the fact-finder and the Board may disregard the findings of fact of the referee only if they are not ...


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