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PLISCOTT v. DUMBLE (06/20/73)

decided: June 20, 1973.

PLISCOTT, ET AL.
v.
DUMBLE, ET AL.



Appeal from the Order of the Workmen's Compensation Appeal Board in case of Thomas Dumble v. Ernest C. Pliscott and Aetna Casualty and Surety Company, Insurance Carrier, No. A-65872.

COUNSEL

J. P. Harris, Jr., for appellants.

Theodore L. Krohn, for appellee.

Judges Kramer, Mencer and Blatt, sitting as a panel of three. Opinion by Judge Kramer.

Author: Kramer

[ 9 Pa. Commw. Page 293]

This is an appeal by Ernest C. Pliscott and Aetna Casualty and Surety Company (hereinafter Pliscott) from an order of the Workmen's Compensation Appeal Board (Board) dated November 29, 1972. The adjudication appealed from dismisses Pliscott's appeal, and affirms the referee's order wherein Thomas Dumble's (Dumble) petition to set aside a Final Receipt was granted.

Dumble was an electrician in Pliscott's employ. On June 16, 1965, while in the course of his usual employment, Dumble received an electrical shock and fell from a ladder. Dumble sustained injuries as a result of the fall, including injuries to the neck and head. Due to

[ 9 Pa. Commw. Page 294]

    the accident in question, Dumble was totally disabled. He received compensation pursuant to an initial and two supplemental agreements for the time periods that follow: June 16, 1965 through September 1, 1965; June 7, 1966 through September 16, 1966. On September 20, 1966, Pliscott filed a petition to terminate compensation on the basis that Dumble had fully recovered. This petition never culminated in a hearing for Dumble executed a Final Receipt on November 4, 1968. The Final Receipt indicated that September 16, 1966 was the last date for which compensation was to be paid. Dumble received compensation on or about October 6, 1966 for the period ending on September 16, 1966. Contemporaneously with the execution of the Final Receipt, Dumble was reimbursed $1,172.50 for medical and hospital expenses. This payment was covered by an extra-medical insurance policy beyond that required by statute.

On February 18, 1970, Dumble filed a Petition to Set Aside Final Receipt. A hearing was held on November 12, 1971; after which, the referee found for Dumble. Pliscott appealed to the Board. The Board affirmed the referee and Pliscott appealed to this Court.

Pliscott raises two issues on appeal: (1) that Dumble's petition was not timely filed; and (2) that Dumble did not conclusively prove that all disability due to the accident in fact had not terminated. All parties agree that Section 434 of the Workmen's Compensation Act, Act of June 2, 1915, P.L. 736, as amended (as of February 28, 1956, P.L. 1120), 77 P.S. § 1001, is the operative and controlling section of law. Section 434 provides: "A final receipt, given by an employe or dependent entitled to compensation under a compensation agreement or award, shall be prima facie evidence of the termination of the employer's liability to pay compensation under such agreement or award: Provided, however, That the board, or a referee designated by the

[ 9 Pa. Commw. Page 295]

    board, may, at any time within two years from the date to which payments have been made, set aside a final receipt, upon petition filed with the board, if it be conclusively proved that all disability due to ...


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