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VICTORIA LEE MACIUPA v. UNION SWITCH & SIGNAL AND WORKMEN'S COMPENSATION APPEAL BOARD (04/17/74)

decided: April 17, 1974.

VICTORIA LEE MACIUPA, APPELLANT,
v.
UNION SWITCH & SIGNAL AND WORKMEN'S COMPENSATION APPEAL BOARD, APPELLEES



Appeal from the Order of the Workmen's Compensation Appeal Board in case of Victoria Lee Maciupa v. Union Switch and Signal, No. A-66073.

COUNSEL

Thomas P. Geer, for appellant.

Thomas J. Ferris, with him Clem R. Kyle, for appellee.

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

Author: Blatt

[ 13 Pa. Commw. Page 127]

On September 18, 1970, Victoria Lee Maciupa (claimant) suffered a compensable injury to her left index finger, and soon thereafter she entered into a compensation agreement with her employer, Union Switch & Signal (Union). On October 5, 1970, she signed a final receipt and returned to work. Being apparently

[ 13 Pa. Commw. Page 128]

    unable to perform her old job of assembly work, because that task required the use of two hands, she was given work which required only the use of her right hand. On October 23, 1970, however, she claims that she was assigned by her supervisor to a job which she could not perform, because the injury to her finger made it impossible for her to use her left hand, so she left her job. She was subsequently able to get other work at lower paying jobs, where it was not necessary to use her left hand. The claimant then sought to have the final receipt she had signed set aside and asked for the reinstatement of her compensation payments.

Following a hearing, a referee determined that the claimant was still disabled and was consequently entitled to the reinstatement of compensation payments. On Union's appeal, the Workmen's Compensation Appeal Board (Board) held that it had "absolutely no question from the evidence in this case that all disability had not terminated" on the date the final receipt was signed, but held further that the determination of the extent of disability required medical testimony and remanded the matter to the referee for the purpose of taking such testimony. The claimant has now appealed to this Court.*fn1

[ 13 Pa. Commw. Page 129]

Our scope of review is limited to a determination of whether or not constitutional rights were violated, an error of law was committed, or any necessary finding of fact was unsupported by substantial evidence. Jessop Steel Company v. Workmen's Compensation Appeal Board and Okey Miller, 10 Pa. Commonwealth Ct. 186, 309 A.2d 86 (1973). And where, as here, the Board has taken no additional evidence and the referee has found in favor of the party carrying the burden of proof, we must rely on the facts as found by the referee if they are supported by sufficient competent evidence. Universal Cyclops Steel Corporation v. Krawczynski, 9 Pa. Commonwealth Ct. 176, 305 A.2d 757 (1973).

The method by which a final receipt may be set aside is set out in Section 434 of The Pennsylvania Workmen's Compensation Act, Act of June 2, 1915, P.L. 736, as amended, 77 P.S. ยง 1001, which, at the time the final receipt herein was signed, read as follows: "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 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 the accident in fact had not terminated."

When attempting to set aside a final receipt the claimant must meet his burden of conclusive proof with clear and convincing evidence. Pliscott v. Dumble, 9 Pa. Commonwealth Ct. 292, 305 A.2d 918 (1973). If the claimant does carry his burden and succeeds in having the final receipt set aside, the ...


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