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CLIMAX MOLYBDENUM COMPANY AND PENNSYLVANIA MANUFACTURERS' ASSOCIATION INSURANCE CO. v. WORKMEN'S COMPENSATION APPEAL BOARD AND DONALD C. MCCOMBS (10/08/74)

decided: October 8, 1974.

CLIMAX MOLYBDENUM COMPANY AND PENNSYLVANIA MANUFACTURERS' ASSOCIATION INSURANCE CO., INSURANCE CARRIER, APPELLANTS,
v.
WORKMEN'S COMPENSATION APPEAL BOARD AND DONALD C. MCCOMBS, APPELLEES



Appeal from the Order of the Workmen's Compensation Appeal Board in case of Donald C. McCombs v. Climax Molybdenum Company, No. A-66273.

COUNSEL

Harold V. Fergus, Jr., with him Fergus, Martin and Fergus, for appellant.

Kenneth J. Yablonski, with him James N. Diefenderfer, for appellees.

Judges Crumlish, Jr., Wilkinson, Jr. and Rogers, sitting as a panel of three. Opinion by Judge Wilkinson.

Author: Wilkinson

[ 15 Pa. Commw. Page 250]

This is an appeal by the Climax Molybdenum Company from a decision of the Workmen's Compensation Appeal Board affirming the referee's order setting aside a final receipt and reinstating a compensation agreement.

Claimant-appellee suffered a compensable injury on March 5, 1967, when he injured his back while working for the appellant company. He entered into an agreement and was paid compensation for total disability until October 23, 1967, when he signed a final receipt. On June 16, 1970, claimant-appellee filed a petition to reinstate the 1967 agreement "which was suspended on October 13, 1969."*fn1

[ 15 Pa. Commw. Page 251]

During the course of several hearings on this matter, claimant-appellee amended his petition*fn2 to a petition to set aside the final receipt executed on October 23, 1967. On October 4, 1972, the referee set aside the final receipt on the grounds of intentional or unintentional deception practiced by the appellant and reinstated the compensation agreement entered into in 1967. The referee awarded total disability commencing on April 14, 1970, the date claimant-appellee left work due to pain and discomfort in the same area of his back that had been injured in the 1967 accident. The referee found that there had been a recurrence of the March 5, 1967, injury and continued the compensation on into the future. The Workmen's Compensation Appeal Board affirmed.

The main issue presented in this case is whether the final receipt should be set aside on the basis of fraud or intentional or unintentional deception. If there is fraud or intentional or unintentional deception, Section 434 of the Pennsylvania Workmen's Compensation Act, Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 1001 (Supp. 1974-1975), which sets a two-year limitation on actions to set aside final receipts, will not apply.

Absent fraud or deception, the Legislature clearly intended that the failure to file for an additional award of compensation within the specified time should operate as an absolute bar of the right. The courts, however, can permit a claim to be filed after the two years

[ 15 Pa. Commw. Page 252]

    if fraud, which in this connection includes an unintentional deception, is shown. Dennis v. E. J. Lavino and Co., 203 Pa. Superior Ct. 357, 201 A.2d 276 (1964). The evidence to support such a claim must be clear and precise. Thorn v. ...


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