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NICHOLAS PALMIERE v. WORKMEN'S COMPENSATION APPEAL BOARD (EAST END TRUCKING) (08/14/85)

decided: August 14, 1985.

NICHOLAS PALMIERE, PETITIONER
v.
WORKMEN'S COMPENSATION APPEAL BOARD (EAST END TRUCKING), RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in the case of Nicholas Palmiere v. East End Trucking, No. A-84229, and Reinstatement Petition, No. 167-09-9958.

COUNSEL

Paul F. Laughlin, Laughlin, Dixon & Schlass, for petitioner.

Lawrence J. Baldasare, Meyer, Darragh, Buckler, Bebenek & Eck, for respondent, East End Trucking.

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

Author: Blatt

[ 91 Pa. Commw. Page 137]

Nicholas Palmiere (petitioner) appeals here from an order of the Workmen's Compensation Appeal

[ 91 Pa. Commw. Page 138]

Board (Board) which reversed a referee's decision lifting the suspension of his disability benefits.

The petitioner, while employed as a truck driver and loader for East End Trucking (employer), a moving company, suffered a work-related injury on July 3, 1975. The parties thereafter executed various supplemental agreements and final receipts, culminating in a supplemental suspension agreement effective February 2, 1976. On that date the petitioner returned to work for the employer at a light-duty job at his former wages, the parties having agreed that he continued to sustain an undetermined partial disability.*fn1 The employer terminated this light employment in May 1976, being unwilling to pay the petitioner his former wages while he was unable to perform the heavy work required of a moving man. The petitioner thereafter purchased a small grocery store franchise, and was able to perform the less strenuous duties involved therein, but he lost that business in May 1979. He subsequently filed a petition for reinstatement of compensation on the basis that he remained unable to return to work as a moving man and that he had been unable to obtain any work since he lost his grocery job. At the time of the referee's hearing, the Petitioner was able to perform some limited work, but the employer failed to prove that such work was available to him. The referee concluded, therefore, that the petitioner was entitled to have the suspension set aside.

[ 91 Pa. Commw. Page 139]

The employer appealed to the Board, which determined that the petitioner had the burden of establishing that his disability increased or recurred subsequent to the suspension agreement, and accordingly concluded that the referee erred in finding that the petitioner had met his burden of proof. It stated further that a mere showing of a change in economic circumstances without a corresponding change in physical condition, as in the petitioner's case, is an insufficient basis on which to reinstate benefits, and thus reversed the referee's decision.

The petitioner, citing Busche v. Workmen's Compensation Appeal Board (Townsend & Bottum, Inc.), 77 Pa. Commonwealth Ct. 469, 466 A.2d 278 (1983), contends that the Board erred in placing the burden on him to prove that his condition had worsened or recurred, and argues that he merely needed to prove that, while his disability continued, his loss of earnings had recurred. In Busche, of course, we held that, where a claimant's disability continued, relieved only by a period of employment in a specially created job, proof of the discontinuance of that position is a claimant's only burden, and that the employer bears the burden of establishing the existence of the type of job that the claimant is able to perform.

The employer argues that Busche should be distinguished on three points: 1) because that claimant had been employed by the employer in a "specially created" job; 2) because medical testimony there established an increase or change in that claimant's physical disability; and 3) because the suspension of benefits there had apparently been undertaken ...


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