Appeal from the Order of the Workmen's Compensation Appeal Board in case of Carl A. Lindbom v. Jones & Laughlin Steel Corporation, No. A-69046.
John C. Unkovic, with him Reed, Smith, Shaw & McClay, for appellant.
William R. Caroselli, with him McArdle, Henderson, Caroselli, Spagnolli & Beachler, and James N. Diefenderfer, for appellees.
President Judge Bowman and Judges Rogers and Blatt, sitting as a panel of three. Opinion by Judge Blatt.
[ 22 Pa. Commw. Page 471]
Jones & Laughlin Steel Corporation (employer) appeals here from a decision of the Workmen's Compensation Appeal Board (Board) which affirmed a referee's order setting aside a final settlement receipt executed between the employer and Carl A. Lindbom (claimant). We affirm the Board.
The claimant sustained a fractured pelvis and a transected urethra while working at the employer's plant on February 7, 1970 as a brakeman, a job entailing heavy labor. As a result of this accident he received benefits from February 8, 1970 until March 16, 1971, but he signed a final settlement receipt on April 8, 1971 indicating that he had been able to return to work on March 17, 1971. On December 13, 1971, however, he filed a petition to set aside the final receipt, and a series of hearings was held before a referee who ruled on that petition on August 23, 1974, finding that the claimant's disability had continued after March 17, 1971 and reinstating benefits from that date. The Board affirmed without taking additional evidence.
A case such as this one, wherein the claimant seeks to set aside a final receipt, is governed by Section 434 of the Workmen's Compensation Act.*fn1 This section of the Act has been amended several times but the version in effect when the final receipt was executed, must control. Bun v. Central Pennsylvania Quarry, Stripping & Construction Co., 194 Pa. Superior Ct. 630, 169 A.2d 804 (1961). The applicable version provided 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
[ 22 Pa. Commw. Page 472]
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."
In order to meet his burden under this section, the claimant must present clear and convincing evidence that his disability had not terminated. Maciupa v. Union Switch & Signal, 13 Pa. Commonwealth Ct. 126, 317 A.2d 901 (1974); Rice v. A. Steiert & Sons, Inc., 8 Pa. Commonwealth Ct. 264, 301 A.2d 919 (1973). In attempting to satisfy that burden, the claimant here presented the testimony of Dr. Gerald W. Pifer, an orthopedist acquainted with the claimant's medical history. Dr. Pifer stated that he had examined the claimant on two occasions, April 14, 1973 and on July 5, 1973, and he related the claimant's injuries as having consisted principally of a fractured pelvis and a transected urethra. He expressed the opinion that the claimant was unable to return to his job because of the pain which he had had since the accident and which he was still experiencing. The claimant also testified on his own behalf and described his continuing pain. He stated that he could not do any kneeling or heavy lifting and that he could not walk for long distances or sit for any long period of time. He also recounted that when he attempted to return to work on one day in March or April of 1972, he felt such soreness that he could not continue. We believe that such testimony, if believed by the referee, was sufficient to sustain the claimant's burden.
The employer argues, of course, that its medical evidence was much more convincing than the claimant's in that it consisted of the testimony of three examining doctors, including an urologist, an orthopedist and a psychiatrist. The employer also points out that, by the claimant's own admission, two other ...