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LITTON INDUSTRIES v. WORKMEN'S COMPENSATION APPEAL BOARD (CHRISTNER) (10/25/83)

decided: October 25, 1983.

LITTON INDUSTRIES, PETITIONER
v.
WORKMEN'S COMPENSATION APPEAL BOARD (CHRISTNER), RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in case of David Christner v. Litton Industries, No. A-82653.

COUNSEL

Frank I. Goldenberg, with him Robert H. Griffith, Kagen, Griffith, Strickler, Lerman & Solymos, for petitioner.

J. Christian Ness, with him Thomas L. Kearney, III, for respondent, David Christner.

Judges Rogers, MacPhail and Barry, sitting as a panel of three. Opinion by Judge Rogers.

Author: Rogers

[ 78 Pa. Commw. Page 80]

This is an employer's appeal from an order of the Workmen's Compensation Appeal Board reversing the order of a referee granting the employer's application for modification of an agreement for compensation.

On September 17, 1977, the claimant suffered compensable work-related injuries resulting in the amputation of portions of the first, second, third and fourth fingers of his right hand.*fn1 In January, 1978, he was provided with a notice of compensation payable for total disability, in which his injury was described as "caught 3 fingers in machine." The parties executed a supplemental agreement dated August 4, 1978, calling for payments of compensation for 335 weeks for "the loss of use of right hand." In February, 1980, the employer and its insurance carrier filed a petition for modification of the supplemental agreement on the ground that it was materially incorrect because the claimant's injury "did not constitute the loss of the entire hand for all practical purposes."

The supplemental agreement was prepared by the employer or its insurance carrier and sent to the claimant, who was then unrepresented, in July or August, 1978. On August 4, 1978, the date of the supplemental agreement, the claimant's hand was healed

[ 78 Pa. Commw. Page 81]

    and all parties were aware that parts of four fingers, not the entire hand, had been amputated. There is no suggestion that the claimant misrepresented the true condition of his hand and there is no evidence that the employer did not fully understand the nature and extent of the injuries to the claimant's hand.

The referee, after hearing, concluded that "claimant has a fifty (50%) per cent disability of his right hand" and modified the supplemental agreement so as to provide for the payment of compensation for a period of 167.5 (instead of 335) weeks "for 1/2 loss of the use of the right hand." The Workmen's Compensation Appeal Board (Board) reversed the referee's order because, inter alia, the employer had not shown that the supplemental agreement was incorrect in any material respect. We agree and will affirm the Board's order.

Section 413 of The Pennsylvania Workmen's Compensation Act, Act of June 2, 1915, P.L. 736, as amended, 77 P.S. ยง 771, gives referees the power to modify agreements for compensation "if it be proved that such . . . agreement was in any material respect incorrect." Modification of a compensation agreement is justified where there is a true mistake of fact or law which renders such agreement materially incorrect, Turner v. Jones & Laughlin Steel Corp., 479 Pa. 618, 389 A.2d 42 (1978), and the burden is on the party seeking modification to prove by evidence reasonably satisfactory that a material mistake of fact or law was made at the time the agreement was entered into. Fehr v. YMCA, Pottsville, 201 Pa. Superior Ct. 107, 192 A.2d 143 (1963). This means in this ...


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