Harry Halloran Construction Co. v. Commonwealth , 39 Pa. Commw. 272 ( 1978 )

Opinion by

Judge Mencer,

Harry Halloran Construction Company (employer) appeals from an order of the Workmen’s Compensation Appeal Board (Board) reinstating compensation payable to Louis Anderson (claimant) for a back injury suffered on October 18, 1973. Since the claimant failed to introduce any evidence that his disability had increased or recurred after the date of a prior award terminating compensation, we are compelled to reverse.

The back injury which claimant suffered on October 18, 1973, in the course of his employment, was diagnosed as a disc-type injury. He was paid compensation for this injury from October 19, 1973 until May 16, 1975. On May 20, 1975, the employer filed a petition for termination, pursuant to Section 413 of The Pennsylvania Workmen’s Compensation Act (Act), Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §772. In support of its petition, the employer submitted a report of a physician who had examined the claimant and concluded that he was capable of returning to his former position. A hearing was scheduled for September 2, 1975, at which the claimant failed to appear. An order terminating all benefits was entered by the referee on September 25, 1975 and mailed to the claimant on October 18, 1975. On December 22, 1975, the claimant attempted to file an appeal with the Board. Upon motion of the employer, this appeal was quashed as untimely. No further appeal was taken by the claimant.

Four months later, on April 20, 1976, the claimant filed a petition for reinstatement, also pursuant to .Section 413 of the Act. Hearings were held on June 30, 1976 and December 9, 1976. Evidence received by the referee included the claimant’s testimony and the deposition of claimant’s physician. The evidence indicated that on May 19, 1976, a test known as a lumbar myelogram was performed on the claimant and revealed a defect in the claimant’s back suggestive of a disc-type injury. Based on this evidence, the referee found that claimant’s total disability had “recurred” on May 19, 1976, the date of the myelogram, and benefits were reinstated. The Board affirmed, and this appeal followed.

It is well established that a claimant’s petition under Section 413 for reinstatement or modification of a prior award must be supported by evidence that the disability has recurred or increased after the date of the prior award. See, e.g., Cerny v. Schrader & Seyfried, Inc., 463 Pa. 20, 342 A.2d 384 (1975); Airco-Speer Electronics v. Workmen’s Compensation Appeal Board, 17 Pa. Commonwealth Ct. 539, 333 A.2d 508 (1975). A claimant cannot attempt to .relitigate the extent of his disability as determined in the prior award. Workmen’s Compensation Appeal Board v. Booth & Flinn Co., 18 Pa. Commonwealth Ct. 369, 336 A.2d 448 (1975). Thus, the issue here is whether the referee’s finding that claimant’s disability “recurred” on May 19, 1976, is supported by substantial evidence. See Harman Coal Co. v. Dunmyre, 474 Pa. 610, 379 A.2d 533 (1977).

We do not believe that the referee’s finding is supported by the evidence. The claimant did not testify that his pain had increased or was in any way different from that he had experienced prior to September 25, 1975. On cross-examination, claimant admitted that he had experienced pain of the same nature prior to October 1975. Similarly, claimant’s physician did not testify that claimant’s condition had in any way changed. Rather, he testified that, since 1974, his diagnosis, clincial findings, and recommended treatment had remained unchanged.

The claimant does not appear to dispute this. Along with the referee and the Board, he relies almost exclusively on the results of the myelogram performed on May 19, 1976,- to support the critical finding. However, the results of this test do not indicate that claimant’s actual physical condition changed in any way. Rather, the test merely indicates that claimant does have a disc-type injury. There is no evidence that the disc injury is causing claimant any more difficulty now than in 1975 when the referee concluded that he was capable of returning to his former position. Claimant is unable, by offering the results of the myelogram, to prove that his condition was more severe than determined by the referee. See Workmen’s Compensation Appeal Board v. Booth & Flinn Co., supra (where symptoms have not changed and claimant merely puts forth a different medical explanation for them, he has not met his burden of proof). To hold otherwise would allow a claimant, dissatisfied with an award, to visit more doctors, have more tests performed, and seek reinstatement simply because he now has stronger evidence than that previously produced. Absent substantial evidence that a claimant’s actual physical condition has in fact deteriorated since a prior award, a petition for reinstatement cannot succeed.

Order

And Now, this 18th day of December, 1978, the order of the "Workmen’s Compensation Appeal Board, dated July 14, 1977, affirming a referee’s grant of workmen’s compensation benefits to Louis Anderson, is hereby reversed, and benefits are hereby denied.