Harris Weinstein/Clyde Shirt Co. v. Workmen's Compensation Appeal Bd.
| Citation | 443 A.2d 857,65 Pa.Cmwlth. 598 |
| Parties | HARRIS WEINSTEIN/CLYDE SHIRT CO., Petitioner, v. Commonwealth of Pennsylvania, WORKMEN'S COMPENSATION APPEAL BOARD and Virginia K. Hower, Respondents. |
| Decision Date | 02 April 1982 |
| Court | Commonwealth Court of Pennsylvania |
Martin J. Fallon, Jr., Swartz, Campbell & Detweiler, Philadelphia, for petitioner.
Richard D. Director, Allentown, for respondent.
Before MENCER, BLATT and DOYLE, JJ.
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). 1
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 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 Board, 39 Pa.Commonwealth Ct. 272, 395 A.2d 325 (1978). It is not sufficient merely to provide additional evidence as to the nature and extent of the original disability, Halloran, nor can the burden be met by proving that the disability is attributable to a different medical explanation than that previously advanced, if no actual change in condition has been established. Workmen's Compensation Appeal Board v. Booth & Flinn Co., 18 Pa.Commonwealth Ct. 369, 336 A.2d 448 (1975).
The case at hand is a close and difficult one but, keeping in mind that the Workmen's Compensation Act is to be liberally construed in favor of granting benefits, P. P. G. Industries, Inc. v. Workmen's Compensation Appeal Board, 7 Pa.Commonwealth Ct. 588, 300 A.2d 902 (1973), we must find that the Board correctly affirmed the referee's decision.
Our examination of the applicable caselaw leads us to believe that both Halloran and Booth & Flinn are distinguishable.
In Halloran the claimant sought only to introduce new evidence as to the extent of a disc-type injury which he had incurred and which had been the subject of an earlier award. In support of her reinstatement petition, the claimant here, however, did not merely provide additional evidence of the nature of her original disability, but she introduced the testimony of her medical witness to establish the existence of an entirely new injury and thereby a new disability. The grant of benefits in the initial claim petition was based on a diagnosis that the claimant had suffered a cracked...
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