Appeal from the Order of the Workmen's Compensation Appeal Board in case of Jack Sullenberger v. Page Steel & Wire Division, No. A-68437.
Richard G. Jewell, with him Wayman, Irvin, Trushel & McAuley, for appellant.
Leonard P. Kane, Jr., with him Brandt, McManus, Brandt and Malone, and James N. Diefenderfer, for appellees.
Judges Crumlish, Jr., Wilkinson, Jr. and Blatt, sitting as a panel of three. Opinion by Judge Crumlish, Jr.
[ 20 Pa. Commw. Page 415]
This is a direct administrative appeal from an order of the Workmen's Compensation Appeal Board affirming the setting aside of a final receipt by a referee and reinstating compensation for total and partial disability under a prior compensation agreement. The question raised here is whether there is substantial evidence to support a finding that appellee's back disability had not, in fact, terminated when the final receipt was executed.
On February 16, 1967, Jack Sullenberger (Appellee) sustained an injury in the course of his employment with Page Steel and Wire Division (Appellant). The compensation agreement entered into by the parties on March 2, 1967 described the accident and nature of Appellee's injury as follows: "While climbing wall to get out of pit, cable snapped and employee fell 5 feet striking leg against
[ 20 Pa. Commw. Page 416]
rail of track. Contusion and abrasion left leg." On this same date, Appellee executed a final receipt covering this accident, and Appellee thereafter returned to work although at diminished earnings. He was eventually laid off when the light work he was performing for Appellant since the accident was no longer available. On June 6, 1968, Appellee filed the instant petition to set aside a final receipt and a petition to review the March 2, 1967 compensation agreement on the ground that he continued to suffer from a back injury allegedly suffered in the February 16, 1967 accident.*fn1 After six hearings spanning over three years, the referee granted both petitions and reinstated compensation. The Workmen's Compensation Appeal Board affirmed without taking additional evidence, and we similarly affirm.
In an action to set aside a final receipt under Section 434 of the Pennsylvania Workmen's Compensation Act,*fn2 the burden is upon the claimant to prove conclusively that all disability from the accident had not, in fact, terminated when the final receipt was executed, and this burden must be met with clear and convincing evidence. Universal Cyclops v. Workmen's Compensation Appeal Board, 13 Pa. Commonwealth Ct. 375, 320 A.2d 449 (1974); Maciupa v. Union Switch and Signal, 13 Pa. Commonwealth Ct. 126,
[ 20 Pa. Commw. Page 417317]
A.2d 901 (1974). As Appellee was found to have carried this burden by the referee, our evidentiary review is for substantial evidence in support of the referee's findings. Climax Molybdenum Co. v. Workmen's Compensation ...