31 Pa. Commw. 64 | Pa. Commw. Ct. | 1977
Opinion by
Clarence Boyer sustained injuries in the course of his employment with Gladys Supply Company in February 1963 which were the occasion of six later operations on his back. He was paid compensation for total disability under an agreement until June 1964 when he executed a final receipt and returned to work. In December 1964 Boyer filed a petition to set aside the final receipt. After hearings Boyer was awarded compensation for total disability in July 1966. In October 1966 the employer and its carrier filed for termination.
At the conclusion of the 350 weeks of payment for partial disability Boyer filed a timely petition to modify the award. A referee dismissed the petition based on his finding that Boyer failed to establish a change in his condition since December 1967 and his conclusion that the agreement on which the 1967 award of partial disability was based was valid and barred any claim for additional compensation.
On Boyer’s appeal, the Workmen’s Compensation Appeal Board held that the referee had capriciously disregarded competent evidence in finding that Boyer had not proved a change in his condition after December 1967. The Board further held that the referee had erred in holding that the December 1967 stipulation barred Boyer’s application for modification. In this regard the Board relied on Section 407 of The Pennsylvania Workmen’s Compensation Act, Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §731, which provides, inter alia, that any agreement which varies the period during which compensation is payable by law shall be of no effect. The Board set aside the referee’s decision and remanded the record for findings based on the claimant’s evidence.
The appellant, which adduced no evidence, says that the referee’s finding that Boyer had not proved a change in disability is supported by the evidence and that Boyer did not prove an increase in his disability
The case is similar on the facts to Redwood Enterprises v. Darabant, 7 Pa. Commonwealth Ct. 421, 298 A.2d 675 (1973) where we upheld an award where the claimant proved the increase by evidence of present total disability compared to an earlier stipulated condition of 50% disability.
We believe that the Board correctly decided the case and enter the following
Order
And Now, this 14th day of July, 1977, the order of the Workmen’s Compensation Appeal Board is affirmed and the record is remanded for further proceedings in accordance with that order.
No objection is raised that the present appeal is interlocutory, probably because the parties agree that the Board's order requires the referee to award compensation.