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HARRIS WEINSTEIN/CLYDE SHIRT CO. v. COMMONWEALTH PENNSYLVANIA (04/02/82)

decided: April 2, 1982.

HARRIS WEINSTEIN/CLYDE SHIRT CO., PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, WORKMEN'S COMPENSATION APPEAL BOARD AND VIRGINIA K. HOWER, RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in case of Virginia K. Hower v. Harris Weinstein/Clyde Shirt Co., No. A-78418.

COUNSEL

Martin J. Fallon, Jr., Swartz, Campbell & Detweiler, for petitioner.

Richard D. Director, for respondent, Virginia K. Hower.

Judges Mencer, Blatt and Doyle, sitting as a panel of three. Opinion by Judge Blatt.

Author: Blatt

[ 65 Pa. Commw. Page 599]

The petitioner, Harris Weinstein/Clyde Shirt Company, appeals a decision of the Workmen's Compensation Appeal Board (Board) which affirmed a referee's order reinstating total disability benefits to the claimant, Virginia K. Hower, under Section 413 of The Pennsylvania Workmen's Compensation Act (Act).*fn1

The claimant incurred a back injury on May 6, 1977 while in the course of her employment with the petitioner, and a workmen's compensation referee awarded her total disability benefits from May 6 through September 12, 1977. Relying on the testimony of her medical witness, Dr. Finnegan, to the effect that the claimant's fractured vertabrae had

[ 65 Pa. Commw. Page 600]

    healed, the referee found that she was not disabled as of September 13, 1977. That decision was not appealed.

On March 22, 1979, the claimant filed a petition to reinstate benefits for total disability from the date of September 13, 1977 forward and Dr. Finnegan testified again, this time asserting that the claimant continued to be disabled after September of 1977 and that he performed exploratory surgery in October of 1978 which revealed that she suffered from lumbrosacral disc degeneration which required disc fusion and that this condition was aggravated by her earlier work-related injury.

The referee granted benefits, concluding that the claimant's total disability "had recurred or continued on or after September 13, 1977." The Board affirmed the order reinstating benefits, holding that the referee could infer from the necessity for surgery that the claimant's condition had changed after September of 1977 and that the claimant was not attempting to relitigate the earlier decision but was presenting evidence that her condition had changed. This petition for review followed.

The petitioner contends that the claimant failed to prove that her disability had increased or changed on or after September 13, 1977 and that the Board and the referee had therefore erred in reinstating benefits.

The general rule is that the claimant has the burden of establishing that a disability has increased or recurred after the date of a prior award, and to meet this burden is required to show that his or her physical condition has actually changed in some manner. Harry Halloran Construction Co. v. Workmen's Compensation Appeal ...


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