Appeal, No. 3, Feb. T., 1959, from judgment of Court of Common Pleas of Luzerne County, July T., 1957, No. 747, in case of Joseph Cusick v. No. 14 Coal Company et al. Judgment affirmed.
Penrose Hertzler, for appellants.
Thomas L. Kennedy, Jr., for appellee.
Before Rhodes, P.j., Hirt, Gunther, Wright, Woodside, Ervin, and Watkins, JJ.
[ 190 Pa. Super. Page 21]
This is an appeal in a workmen's compensation case in which the court below affirmed the decision of the Board and entered judgment in favor of the claimant, Joseph Cusick. The claimant, employed by No. 14 Coal Company of Pittston, was injured on October 5, 1954 by dislodged heavy timbers. Thereafter, claimant and defendant coal company entered into an agreement providing for compensation at the rate of $32.50 per week. Claimant received this weekly compensation until April 30, 1955, when he signed a final receipt. On May 13, 1955, thirteen days later, he filed a petition to set aside the final receipt, alleging that he was still disabled and still had loss of earning power as a result of the injury sustained. An answer was filed in which the allegations were denied. The Referee, after hearing the testimony, found that at the time claimant signed the final receipt, he was totally disabled and that such total disability continued until December 1, 1955, when his disability decreased to a 35% partial disability. The Referee concluded that the final receipt
[ 190 Pa. Super. Page 22]
should be set aside and awarded compensation for total disability from May 2, 1955 to November 30, 1955, and compensation for partial disability from December 1, 1955.
From the decision of the Referee, the defendant and the intervening defendant appealed to the Board which affirmed the Referee's findings of fact and conclusions of law and order of award and dismissed the appeal. From this decision an appeal was taken to the Court of Common Pleas of Luzerne County, which affirmed the decision of the Board and entered judgment in favor of the claimant. This appeal followed.
The sole question raised for our determination is whether the claimant has produced sufficient evidence to set aside the final receipt which was knowingly executed by him.
Dr. Lewis L. Rogers testified, on behalf of the claimant, that he first examined claimant on June 21, 1955, that numerous other examinations were made and that the last examination was on March 10, 1956. Claimant's chief complaint was pain and loss of motion in the right shoulder which, upon examination disclosed sharp pain over the right acromial clavicular joint on pressure over the right short rotator cuff, and that abduction was limited to 15%. He further studied X-rays presented to him and further physical examination revealed strength in the region was very limited, and, in fact, the claimant could not hold against weight of the arm and that in the lateral movement posterior abduction was of 40 to 45 degrees. He further testified that at the time of his first examination, claimant could not have accomplished gainful employment.
Claimant testified that, although he knew he was signing a final receipt, he did so sign in the belief that he would be able to work and that, while he tried to use the arm ...