Appeal from the Order of the Workmen's Compensation Appeal Board in the case of Pedro Serrano v. C. Erickson & Sons, No. A-86000.
Francis X. Dillon, Timby and Dillon, P.C., for petitioner.
Martin J. Fallon, Jr., Swartz, Campbell & Detweiler, for respondent, C. Erickson & Sons.
Judges Craig and Doyle, and Senior Judge Blatt, sitting as a panel of three. Opinion by Judge Doyle. Dissenting Opinion by Judge Craig.
[ 101 Pa. Commw. Page 621]
Pedro Serrano (Claimant) appeals from a decision of the Workmen's Compensation Appeal Board (Board) which reversed a referee's reinstatement of Claimant's partial disability benefits.
Claimant suffered a work-related low back injury on December 13, 1978 in the course of his employment as a construction worker with C. Erickson & Sons (Employer). He received benefits for total disability from the date of the injury until June 29, 1979, when Employer filed a termination petition. On August 6, 1980, a referee issued an order terminating Claimant's benefits as of June 18, 1979. This order was affirmed by the Board on February 19, 1981.
On July 10, 1981, Claimant filed a reinstatement petition, alleging that benefits should be reinstated as of June 18, 1979, the same date they had been terminated.
[ 101 Pa. Commw. Page 622]
Pursuant to this petition, a referee determined that since the termination date, Claimant's condition had deteriorated to the extent that as of June 26, 1981, he was re-eligible for partial disability benefits. In support of his decision to award partial rather than total benefits, the referee indicated that Claimant was capable of performing light duty work, and that such work was available to him.
Claimant and Employer both appealed from this decision, Claimant contending that the finding regarding availability of light duty work was not supported by the record, and Employer contending that the finding that Claimant's condition had worsened was not supported by the record. The Board sustained Employer's appeal and dismissed Claimant's. Claimant now appeals to this Court alleging that the referee made a credibility determination in favor of Claimant's medical experts, and the Board exceeded its scope of review in overturning this determination. Claimant has also preserved his argument with respect to the availability of light-duty work.
In a workmen's compensation case, the referee, and not the Board, is the ultimate fact finder. Lesneski v. Workmen's Compensation Appeal Board (Pittsburgh Press Co.), 94 Commonwealth Ct. 18, 503 A.2d 73 (1985). The Board is limited, as is this Court, to determining whether substantial, competent evidence supports the referee's findings of fact or whether an error of law was committed. Id. In the present case, the Board determined that a necessary finding by the referee, viz., that Claimant's condition had changed for the worse since his benefits were terminated, was not supported by substantial competent evidence in the record. We agree.
In a reinstatement petition the claimant bears the burden of establishing that a disability has increased or recurred after the ...