Opinion
January 7, 1977.
Workmen's compensation — Petition to modify award — Change of disability status.
1. An employe, who is found to have quit work without justification and lost no earnings as a result of a partial disability, is not precluded from presenting evidence in support of a petition to modify the award in an effort to establish that his disability has now increased from a partial to a total state causing a loss of earnings. [120-1]
Submitted on briefs, December 10, 1976, to Judges KRAMER, WILKINSON, JR. and ROGERS, sitting as a panel of three.
Appeal, No. 321 C.D. 1976, from the Order of the Workmen's Compensation Appeal Board in case of Anthony Possumato v. Midvale Heppenstall Company, No. A-70365.
Petition with the Department of Labor and Industry to modify workmen's compensation award. Petition dismissed. Petitioner appealed to the Workmen's Compensation Appeal Board. Dismissal affirmed. Petitioner appealed to the Commonwealth Court of Pennsylvania. Held: Order vacated. Record remanded.
Gerald J. Haas, for appellant.
John F. McElvenny, with him Michael P. McKenna, and James N. Diefenderfer, for appellees.
Anthony Possumato was injured on April 30, 1964 while working for Midvale Heppenstall Company. He received benefits for total disability under a compensation agreement until March 22, 1965, when he returned to work. He executed a final receipt on March 29, 1965. On November 1, 1965 Possumato left his work, and on December 3, 1965 he filed a petition for reinstatement of the compensation agreement. A referee set aside the final receipt and awarded compensation but the Workmen's Compensation Board, on October 15, 1970, sustained the employer's appeal, finding that the claimant had a 25% partial disability but that he was not entitled to compensation because he had quit his work without justification and had, therefore, no loss of earnings as a result of his disability. The Court of Common Pleas of Philadelphia County, as a result of appeals by Possumato, twice remanded the matter to the Workmen's Compensation Board for reconsideration. The second order of remand was appealed to this Court. In Possumato v. Midvale-Heppenstall Co., 4 Pa. Commw. 664, 287 A.2d 915 (1972), we reversed the trial court and reinstated the order of the Board. The issue decided against Possumato in the case just described and cited was whether he left his employment on November 1, 1965 for reasons not related to his disability.
The Supreme Court of Pennsylvania denied allocatur of this decision.
On November 5, 1970, Possumato filed a Petition to Modify the action of the Board on the ground that his disability had changed from partial to total after he left his employment at Midvale Heppenstall Company. This petition was assigned to a referee who scheduled a hearing. At the hearing the employer's counsel moved to dismiss Possumato's Petition, asserting that the new proceeding was barred by "principles of res adjudicata and collateral estoppel" by reason of the proceeding which culminated in our decision hereinbefore cited. The referee refused to receive any evidence on behalf of Possumato, heard legal argument with reference to the motion to dismiss and requested memoranda of law. He thereafter dismissed the modification petition. The Workmen's Compensation Appeal Board affirmed the referee's decision stating, "[n]o evidence was introduced on behalf of claimant other than the printed record from the Commonwealth Court of Pennsylvania concerning a prior appeal." It was, and still is, Possumato's position, not that he may relitigate the reason for his quitting work at Midvale Heppenstall Company, but that after quitting his disability increased from partial to total, causing a loss of earnings. We have held that an injured employee is not forever barred from compensation because he quits employment provided by his employer without loss of earnings. P.P.G. Industries, Inc. v. Aites, 7 Pa. Commw. 588, 300 A.2d 902 (1973). The referee erred, therefore, in not receiving Possumato's evidence proffered on the issue of change of disability after November 1, 1965, and the Workmen's Compensation Appeal Board erred in affirming that action.
Pursuant to Section 413 of The Pennsylvania Workmen's Compensation Act, Act of June 2, 1915, P.L. 736, as amended, 77 P. S. § 772.
ORDER
AND NOW, this 7th day of January, 1977, the order of the Workmen's Compensation Appeal Board made February 5, 1976, and the referee's decision made May 13, 1975, dismissing Anthony Possumato's Petition to Modify, are vacated and the record is remanded for a hearing before a referee designated by the Board.