Appeal from the Order of the Workmen's Compensation Appeal Board in case of Robert Berdine v. Crucible, Inc., No. A-82042.
Joseph A. Fricker, Jr., for petitioner.
Lawrence R. Chaban, with him, Benjamin L. Costello, Yablonski, King, Costello & Leckie, for respondent.
Judges MacPhail, Barry and Blatt, sitting as a panel of three. Opinion by Judge Barry.
[ 83 Pa. Commw. Page 460]
This appeal results from an order of the Workmen's Compensation Appeal Board (Board), affirming a decision of the referee, which denied a termination petition filed by the petitioner, Crucible, Inc. (employer), and modified the compensation award to respondent Robert Berdine (claimant).
On January 29, 1979, claimant injured his back while at work. He began collecting compensation pursuant to a notice of compensation payable filed by the self-insured employer. Claimant was treated for the back injury by a doctor designated by the employer for treatment of work-related injuries; following an examination on April 23, 1979, at which muscle spasms in the area of the back were still extant, the treating physician suggested that claimant attempt to return to work. On April 26, 1979, the employer unilaterally terminated payments of compensation benefits without an agreement or a referee's order.
On March 3, 1980, the claimant filed a claim petition, alleging he had been injured at work and was entitled to compensation benefits as a result thereof.
[ 83 Pa. Commw. Page 461]
While the employer filed no responsive answer to the claim petition, it did file, on March 27, 1980, a termination petition, alleging that compensation benefits should be suspended or modified. In early April of 1980, the employer contacted claimant's counsel and agreed to reinstate benefits retroactively to April 26, 1979, pursuant to the notice of compensation payable originally filed by the employer.
Following seven hearings, the referee held that the employer failed to meet its burden of proving claimant's disability had terminated or claimant had returned to work without loss of earning power; consequently, the referee refused to terminate or suspend compensation benefits. The referee did find, however, that the employer had met its burden of proof that claimant's disability had changed, thereby requiring the compensation payable to be modified to provide for the maximum benefits allowed for partial disability. The Board affirmed and this appeal followed.
The petitioner-employer attempted to prove the claimant was, in fact, working in a tavern that he and his wife had purchased shortly after claimant had been injured at work. The employer sought to show that claimant, in essence, received wages or had earning power because of his effort at the family business. It is well settled that the party seeking modification of a disability award, here the employer, has the burden of proving a change in the condition of the claimant. Mancini v. Workmen's Compensation Appeal Board, 64 Pa. Commonwealth Ct. 484, 440 A.2d 1275 (1982). Where the party bearing the burden of proof failed to prevail before the fact finder, the court's review is "for the purpose of ...