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GILL v. FIVES ET AL. APPEAL COAL OPERATORS CAS. CO. (04/15/52)

April 15, 1952

GILL
v.
FIVES ET AL. APPEAL OF COAL OPERATORS CAS. CO.



COUNSEL

J. Webster Jones, Philadelphia, for appellant.

M. Robert Beckman, Philadelphia, for appellee.

Before Rhodes, P. J., and Hirt, Reno, Dithrich, Ross, Arnold and Gunther, JJ.

Author: Dithrich

[ 170 Pa. Super. Page 565]

DITHRICH, Judge.

Claimant, a painter, sprained his back and both ankles as the result of an accidental fall which occurred on July 22, 1949. An open agreement was entered into under which compensation was paid until November 14, 1949, the date claimant returned to work. A final

[ 170 Pa. Super. Page 566]

    receipt was executed on November 22, 1949. Except for a lay-off of about ten weeks, during which time he received unemployment compensation, claimant worked steadily until June 27, 1950. On July 7, 1950, he petitioned the Workmen's Compensation Board to set aside the final receipt under § 434 of the Workmen's Compensation Act, as last amended by the Act of June 21, 1939, P.L. 520, § 1, 77 P.S. § 1001, for the following reason: '[W]hile I returned to work, I continued to work under great difficulty due to pain in back. Had to stop work on June 27th, 1950, as I could not stand the pain any longer.'

The referee's order dismissing the petition was affirmed by the board, which stated in its opinion: 'We find no fraud, coercion or mistake of law or fact, under the Workmen's Compensation Act. Since claimant's petition was filed within one year from the date of the final receipt, if disability from the accident had recurred, we could so find and the final receipt would automatically disappear. We find insufficient evidence, however, of any recurrence of disability attributable to the accident. Claimant had an aggravation of his osteoarthritis, but this condition subsided. When his back against pained him, it was due to the heavy work he was doing and not due to the accident.'

The court below affirmed the board's findings with respect to the execution of the final receipt but, nevertheless, referred the case back to the board with directions to determine the extent of claimant's disability as of June 27, 1950, and to award compensation as provided by law. This action of the court was predicated on its belief that the board misconstrued claimant's medical testimony and on its resultant conclusion that it could not sustain the findings of the board that the aggravation of claimant's osteoarthritis had subsided and that the recurring pain was due to heavy work and

[ 170 Pa. Super. Page 567]

    not due to the accident. The court, after quoting from the testimony of claimant's medical witness, Dr. John W. Lachman, concluded: 'We thus have a clear statement that claimant's disability never ceased and that the recurrence of which he complains is in reality an increase of disability due to the heavy work he was doing. His partial disability at least remains * * *.'

Although the petition requested relief only under § 434 of the Act, it was not improper for the board and the court below to consider it as requesting relief under the second paragraph of § 413*fn1 of the Act, 77 P.S. § 772*fn2 We are, however, of one mind that it was error for the court below to reverse the board's ...


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