53 A.2d 872 | Pa. Super. Ct. | 1947
Argued April 21, 1947. In this workmen's compensation case, the claimant on June 28, 1941, while in the course of his employment as a motorman in defendant's coal mine, sustained a fractured pelvis. Thereafter he and the defendant entered into an open agreement which provided for compensation for total disability. On June 1, 1944, the defendant filed a petition to terminate, averring "That the disability sustained by the claimant on June 28, 1941, has decreased to such an extent that he is now able as of June 1, 1944, to perform all the duties of the occupation at which he was injured". After an answer denying defendant's averment was filed and a hearing held, the defendant amended its petition to terminate to one for modification of the agreement. The referee found that the claimant's disability had decreased to 65 per cent. partial disability and entered an order modifying the agreement. On appeal, the board found that the claimant's disability had not decreased, concluded as a matter of law that since the claimant is totally disabled he is entitled to receive compensation for total disability, and entered *148 an order dismissing the defendant's petition. The defendant's appeal to the Court of Common Pleas of Westmoreland County was dismissed, the findings of fact, conclusion of law and order of the Workmen's Compensation Board were affirmed, and the defendant has taken this appeal.
The defendant seeking to modify the compensation agreement and thus change the status created by the parties had the burden of proof (Manno v. Tri-State Engineering Co.,
Dr. Heberling, a witness for the defendant, who had examined the claimant on September 5, 1944, testified: "This man, of course, has considerable disability at this time as the X-rays show evidence of rather disabling fractures, particularly the one involving the transverse process of the 5th lumbar vertebra, extending into the sacroiliac joint. I feel the pelvic fractures are very well healed and he is having very little difficulty with them. I felt he had about fifty per cent. disability at the time of my examination. . . . Q. . . . Do you feel this man should work? A. I think a certain amount of light work would be well. . . The type of work would have to be *149 selective." Dr. J.M. Best, a witness for the claimant, testified: "Q. From your X-ray examination as well as from your physical examination, together with history of claimant's condition, what in your opinion is the amount of disability that John Barckhoff has? A. I think he is totally disabled for doing most types of work. Q. For general industrial purposes what would you say his disability is? A. Totally disabled for doing heavy work. Q. Is there any kind of light work this man could do, in your opinion? A. He could be a watchman, if he didn't have to do any lifting, bending or stooping — things like that. Q. If this work was not available what would be the disability? A. He would be disabled totally." The medical witnesses agree that the claimant is disabled and it is clear from a reading of their testimony that the claimant is not able to do light work in general but only "selective" light work; light work that does not require "lifting", "bending" or "stooping".
In Babcock v. Babcock Wilcox Co. et al.,
Judgment affirmed. *150