19 Pa. Commw. 176 | Pa. Commw. Ct. | 1975
Opinion by
This is a direct administrative appeal by an employer from an order of the Workmen’s Compensation Appeal Board affirming the grant of total disability to claimant pursuant to a modification petition. The factual genesis is as follows:
On January 24, 1964, Gimbel Brothers (Appellant) and Alice Tischler (Appellee) entered into a compensation agreement providing for total disability payments for an accident sustained by Appellee in the course of her employment which resulted in a traumatic synovitis of Appellee’s left hip. This agreement was superseded by a supplemental agreement which reflected Appellee’s return to work at a loss of earning power from March 23, 1964 until June 4, 1964, at which time she again became totally disabled. Appellant filed a termination petition on August 18, 1965, alleging a refusal of reasonable medical care. This petition was resolved by a referee’s award of June 21, 1966, based upon a stipulation of the parties, granting Appellee maximum partial disability payments for a period of 350 weeeks. On November 22, 1971, Appellee filed a petition to modify this award under the second paragraph of Section 413 of the Pennsylvania
Our review in appeals of this nature where the party with the burden of proof has prevailed below
Appellant’s principal argument here is that Appellee failed to establish an increase in her disability after the date of the referee’s award for partial disability in 1966 as required by Section 413 because her medical witness testified that he was of the opinion that Appellee was totally disabled prior to the 1966 award and that she continues to be totally disabled. The witness also testified, however, that Appellee’s general physical condition had deteriorated since the 1966 award. We find Redwood Enterprises v. Darabant, 7 Pa. Commonwealth Ct. 421, 298 A.2d 675 (1973) to be controlling on this point. In
Nor are we persuaded by Appellant’s argument that there is not substantial evidence to establish a causal relationship between the cause of Appellee’s present total disability — herniated disc between L-4, L-5 and L-5, S-l- and her accident in 1963. As will be recalled, the original compensation agreement entered in 1964 described the result of Appellee’s accident as “traumatic synovitis of the left hip,” i.e., the inflammation of the smooth con
Order
And now, this 23rd day of May, 1975, the appeal of Gimbel Brothers and its insurance carrier, Security Mutual Insurance Company, is dismissed, and Gimbel Brothers and/or Security Mutual Insurance Company are directed to pay Alice Tischler compensation for total disability at the rate of $31.10 per week from October 31, 1971 into the indefinite future, together with interest at
. Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §772.
. As the moving party, Appellee had the burden of proving a change in the extent of her disability. See Tioga Textiles Associates, Inc. v. Workmen’s Compensation Appeal Board, 13 Pa. Commonwealth Ct. 492, 319 A. 2d 211 (1974); Sherred v. Pittsburgh, 7 Pa. Commonwealth Ct. 401, 299 A. 2d 381 (1973).
. We dismiss Appellee’s motion to quash the instant appeal as untimely filed as the docket reveals that the appeal and exceptions were mailed to this Court on the twentieth (20th) day following the mailing of the Workmen’s Compensation Appeal Board’s order as required by Section 427, as amended, 77 P.S. §873 (1974-1975 Supp.) See General v. E. Roseman Co., Pa. , 336 A. 2d 287 (1975).
. Gray, Attorneys’ Textbook of Medicine, (3rd Ed. 1975), ¶41.01.
. Although the notes of testimony from the hearings on the 1965 termination petition are not before us, a report of Appellant’s medical witness submitted during the prior proceeding was read into the record in the instant proceeding which indicated his diagnosis of Appellee’s disabling condition at that time.