Appeal from the Order of the Workmen's Compensation Appeal Board in case of Daniel Amorose v. Universal Cyclops, No. A-66963.
Harold V. Fergus, Jr., with him Fergus, Martin and Fergus, for appellant.
Alexander J. Pentecost, for appellee, Amorose.
Judges Wilkinson, Jr., Mencer and Blatt, sitting as a panel of three. Opinion by Judge Blatt.
[ 13 Pa. Commw. Page 376]
Daniel Amorose (claimant) suffered a compensable accident on October 30, 1969, while in the course of his
[ 13 Pa. Commw. Page 377]
employment with Universal Cyclops (Cyclops). Under the terms of an agreement between the claimant and Cyclops entered into and approved by the workmen's compensation authorities, the claimant received compensation benefits until he returned to work on December 29, 1969. He signed a final receipt sometime thereafter, but, on December 8, 1971, he filed a petition to set aside the final receipt because his disability allegedly had recurred. A referee then found that the claimant's disability still continued, set aside the final receipt and again awarded compensation. On appeal, the Workmen's Compensation Appeal Board (Board), without hearing any additional evidence, affirmed the referee's holding and Cyclops has now appealed to this Court.
On appeals to this Court in workmen's compensation cases, where the referee has found in favor of the party carrying the burden of proof (here, the claimant) and the Board has heard no additional evidence, 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 findings of fact, as found by the referee, were unsupported by substantial evidence. Leipziger v. Workmen's Compensation Appeal Board and Guida, 12 Pa. Commonwealth Ct. 417, 315 A.2d 883 (1974).
In an action to set aside a final receipt pursuant to Section 434 of the Workmen's Compensation Act, 77 P.S. § 1001, the burden is upon the claimant to prove conclusively that all disability due to the accident has in fact not terminated. Here the claimant did present substantial competent evidence to carry that burden and to support the referee's findings of fact to that effect. Such evidence includes the claimant's testimony that, at least since February of 1971, he had recurring pain in his back and his legs and a numbness in his foot and that he had been unable to work since he was laid off
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from his job on May 7, 1971. It also includes testimony from the claimant's medical witnesses indicating that he had a herniated disc which was removed in a laminectomy performed on October 15, 1971 and that the possibility still existed that he would require a lumbar fusion. One medical witness said that the claimant was totally disabled and that such disability was directly caused by the October 30, 1969 accident, while another agreed that the claimant was totally disabled, at least as far as any job requiring any lifting or stooping was concerned, although he was not sure if such disability was causally related to the prior accident.
Cyclops argues that the referee and the Board capriciously disregarded its medical evidence to the effect that the claimant was at most 40% disabled. The test here, however, is one of substantial evidence and not one of capricious disregard, and it was the duty of the referee to determine which competent medical evidence to accept. He determined that issue in favor of the claimant's medical witnesses. Hoy v. ...