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GENERAL TIRE AND RUBBER COMPANY v. WORKMEN'S COMPENSATION APPEAL BOARD AND NEWELL M. BACK (02/26/75)

decided: February 26, 1975.

GENERAL TIRE AND RUBBER COMPANY, APPELLANT,
v.
WORKMEN'S COMPENSATION APPEAL BOARD AND NEWELL M. BACK, APPELLEES



Appeal from the Order of the Workmen's Compensation Appeal Board in case of Newell M. Back v. General Tire & Rubber Company, No. A-67541.

COUNSEL

Samuel P. Gerace, with him Richard C. Witt and Jones, Gregg, Creehan and Gerace, for appellant.

John M. Campfield, with him A. C. Scales and James N. Diefenderfer, for appellees.

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

Author: Mencer

[ 16 Pa. Commw. Page 475]

Newell M. Back (claimant) was injured during the course of his employment with General Tire and Rubber Company (General). As a result of this injury which occurred on February 7, 1967, a compensation agreement was entered into and approved by the Bureau of Workmen's Compensation on April 21, 1967. Under the terms of this agreement, the claimant was paid compensation at the rate of $52.50 per week until March 22, 1967, at which time he returned to work. On March 23, 1967, the claimant signed a final receipt.

Following a medical examination, it was determined that claimant's physical condition had changed, and claimant and General executed a supplemental compensation agreement in which it was agreed that claimant became totally disabled on September 5, 1967. The claimant signed a second final receipt on November 7, 1967 and thereafter worked for General until May 22, 1968.

During March 1969 claimant filed a review petition and a modification petition, and on September 30, 1970 he filed a petition to set aside the final receipt which had been signed on November 7, 1967. All of these petitions were considered together at hearings before a referee who made an order on August 14, 1973 which set aside the final receipt of November 7, 1967 and directed General to restore compensation to the claimant for total disability, at the rate of $52.50 per week, from May

[ 16 Pa. Commw. Page 47622]

, 1968 to August 14, 1973 and thereafter as long as the disability should remain unchanged.

General appealed to the Workmen's Compensation Appeal Board (Board) which affirmed the referee's decision setting aside the final receipt of November 7, 1967 and allowing compensation. General then filed this appeal and we affirm.

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, 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 having 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 ...


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