55 Pa. Commw. 247 | Pa. Commw. Ct. | 1980
Opinion by
Stillman Automotive Center, Inc. (petitioner), appeals here from an order of the Workmen’s Compensation Appeal Board (Board) which affirmed the referee’s denial of the petitioner’s attempt to modify the benefits of its former employee, Worth Chappel (claimant). The claimant had suffered a back injury in the course of employment in 1976 and has since been entitled to receive benefits for a total disability, and the referee based his denial of the modification petition on the grounds that the petitioner had failed to show that work was available for the claimant.
It is well settled that an employer seeking to modify a workmen’s compensation award or agreement and asserting that the employee’s condition of disability is no longer total must prove that such disability has been reduced and that work is available which is within the capabilities of the employee. Community Medical Center v. Workmen’s Compensation Appeal Board, 47 Pa. Commonwealth Ct. 566, 408 A.2d 592 (1979).
It is also well established that review by the Commonwealth Court in a workmen’s compensation, case, where the party with the burden of proof did not prevail below, is to determine whether the findings of fact are consistent with each other and with the conclusions of law and can be sustained without a capricious disregard of competent evidence which is the willful, deliberate disbelief of an apparently trustworthy witness, whose testimony one could not possibly challenge. Jones & Laughlin Steel Corp. v. Workmen’s Compensation Appeal Board, 52 Pa. Commonwealth Ct. 436, 415 A.2d 1275 (1980). The petitioner contends here that the referee capriciously disregarded the evidence of its expert witness concerning the availability of employment to the claimant.
The petitioner argues that the testimony of Dr. Philip Spergel, a rehabilitation psychologist, supports
The order of the Board will therefore be affirmed.
Order
And Now, this 10th day of December, 1980, the order of the Workmen’s Compensation Appeal Board is affirmed, compensation payment is reinstated, and judgment is entered in favor of the claimant, Worth Chappel, against the petitioner, Stillman Automotive Center, Inc., and/or Underwriters Adjusting Company, as follows:
Compensation for total disability shall be at the rate of $187.00 per week, beginning April 13,1977, and Continuing thereafter up to the present and into the
The said petitioner shall also pay to the said claimant, through claimant’s attorney, the costs and expenses, including attorney’s fees, of the proceedings below as set forth in the referee’s finding of fact No. 10.