Appeal from the Order of the Court of Common Pleas of Allegheny County, in case of Willie Lee Whitehead v. Casey Building Wreckers, Inc., and State Workmen's Compensation Fund, No. SA 399 of 1970.
Byrd R. Brown, for appellant.
John T. Owens, Assistant Attorney General, for appellee.
Judges Crumlish, Jr., Mencer and Blatt, sitting as a panel of three. Opinion by Judge Mencer.
On August 21, 1967, Willie Lee Whitehead, claimant-appellant, fell from a wall at his place of employment and suffered a fracture of his left tibia. On October 5, 1967, a compensation agreement was entered into as a result of the injuries suffered in the accident. Under the terms of this agreement, claimant was paid compensation from August 27, 1967, to May 12, 1968, at which time claimant executed a final receipt based on a medical report, dated May 10, 1968, of John A. Perri, M.D.*fn1 Claimant then reported to his employer for work, but, for conflicting reasons in the record, did not resume his former employment.
Claimant thereafter unsuccessfully sought other employment and applied for and received unemployment compensation from the Pennsylvania Unemployment Compensation Bureau, after indicating on the appropriate forms that he was physically able to work.
Subsequently claimant timely filed a Petition To Set Aside the Final Receipt, and a hearing was held before Referee Jerome Myers. Referee Myers, after hearing the testimony of claimant and defendant company's manager, and after physically observing claimant's knee, granted the petition and reinstated claimant's benefits. Exceptions were filed to Referee Myers' decision by the State Workmen's Insurance Fund. These exceptions were limited to the Referee's fourth finding of fact: "Your referee finds as a fact that the final receipt was executed under mistake of fact and that the
claimant, at the time of signing, continued to be totally disabled."
The Board rendered its decision, reversing the Referee, vacated his fourth finding of fact and first conclusion of law, and substituted the following: "Fourth [finding of fact]: Claimant was able to return to work without any disability or loss of earning power due to injuries received by him on August 21, 1967, when he executed a final receipt on or about May 13, 1968. First [conclusion of law]: Claimant has failed to prove the allegation of his Petition To Set Aside the Final Receipt and is, therefore, not entitled to have the prayer of his petition granted." (Emphasis added.) Claimant then appealed to the Court of Common Pleas of Allegheny County, which affirmed the decision of the Board, and then to this Court.
Our scope of review, since the decision of the Board was against the claimant, is whether the Board's findings of fact are consistent with each other and with its conclusions of law and order and can be sustained without a capricious disregard of the evidence. Frombach v. United States Steel Corp., 2 Pa. Commonwealth Ct. 556, 279 A.2d 779 (1971); Bednar v. Westinghouse Electric Corp., 194 Pa. Superior Ct. 10, 166 A.2d 305 (1960).
The following from Bun v. Central Pa. Quarry, S. & C. Co., 194 Pa. Superior Ct. 630, 634-6, 169 A.2d 804, 806-7 (1961), concerning § 434 of The Pennsylvania Workmen's Compensation Act, Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 1001 (the Act), is likewise applicable here: "In our consideration of this appeal it is important to bear in mind the legislative history of Section 434 of the statute (77 P.S. 1001) dealing with the setting aside of final receipts. This section, as originally added by the Act of June ...