Appeal from the Order of the Workmen's Compensation Appeal Board in case of John E. Marshall v. Gulf & Western Industrial Products Company, Bliss Mackintosh-Hemphill Division, No. A-73559.
John J. Petrush, with him McClain, Petrush, Young & Miller, for petitioner.
Roy F. Walters, Jr., with him Fried, Kane and Walters, for respondent.
Judges Crumlish, Jr., DiSalle and Craig, sitting as a panel three. Opinion by Judge Craig.
[ 43 Pa. Commw. Page 427]
John Marshall (claimant) appeals from an order of the Workmen's Compensation Appeal Board (Board) dismissing as untimely his petition to set aside a final receipt and reinstate compensation. Section 434 of The Pennsylvania Workmen's Compensation Act, Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 1001 (Act).*fn1 We reverse.
[ 43 Pa. Commw. Page 428]
Claimant was injured in the course of his employment on October 23, 1969 and received compensation under the Act until June 12, 1970, at which time he signed a final receipt. Claimant was back at work from June 15, 1970 until January 18, 1971, when he again left work because of the original injury. He received compensation from January 18, 1971 until January 25, 1971, when he again returned to work.
Claimant executed a second final receipt, dated January 28, 1971, and continued to work until April 27, 1971, when he again left work as a result of his original injury. Claimant again received compensation from April 27, 1971 until July 6, 1971, and he signed a final receipt on July 7, 1971. It is this last final receipt which claimant is attempting to have set aside.
Claimant continued to work from July 6, 1971 through October 12, 1972, at or about which time Earl Stange, the employer's personnel supervisor, told claimant that he had to retire because he was no longer physically able to do his job. Stange advised claimant to go on sick leave, and collect sickness and accident benefits for one year, and then apply for a disability pension, which would result in a larger pension than if claimant applied for his pension immediately. Claimant followed Stange's advice
[ 43 Pa. Commw. Page 429]
and has been receiving a disability pension since November 1, 1973.
On March 3, 1977, claimant filed his petition to set aside the final receipt and reinstate compensation. A hearing was held, at which the only testimony taken was that of claimant. The referee subsequently dismissed claimant's petition because claimant had failed to take action "within two years of the last payment of compensation."*fn2 ...