Appeal from the Order of the Workmen's Compensation Appeal Board in case of Gerald A. Gray v. Akers Central Motor Lines, No. A-74205.
Lowell A. Reed, Jr., with him Rawle and Henderson, and, of counsel, William G. Adamson, for petitioners.
No appearance for respondents.
Judges Wilkinson, Jr., Mencer and MacPhail, sitting as a panel of three. Opinion by Judge Wilkinson, Jr.
[ 44 Pa. Commw. Page 186]
The issue in this case is whether or not there is substantial evidence to support the referee's finding that claimant's disability had not terminated at the time a final receipt was executed. Because we have determined that the claimant failed to sustain his burden of proof in adducing sufficient evidence to support the finding, we will reverse the order of the Workmen's Compensation Appeal Board affirming the referee's determination setting aside the final receipt.
The claimant was employed by the respondent, Akers Central Motor Lines, as a truck driver from 1970 to 1976. On February 4, 1975, claimant injured his back while unloading freight in the course of his employment and received disability benefits pursuant to a Notice of Compensation Payable until January 5, 1976 when he returned to work and executed the final receipt in question.
On July 12, 1976, claimant filed a petition to set aside the final receipt alleging that on May 24, 1976 he had a recurrence of his back problem and was unable to return to work at his former employment. The employer and its insurance carrier*fn1 denied the existence of any disability resulting from the February 4, 1975 incident and the matter was heard before the referee on four separate dates. Claimant testified that he had originally injured his back at work in 1970; that following his return to work in January 1976 he continued to suffer back problems which he initially attributed to inactivity; and that when he resumed work he performed the same duties as before his injury, i.e., heavy lifting and moving freight, with
[ 44 Pa. Commw. Page 187]
no loss of time or earning power until May 1976. Claimant's medical witness, Dr. William J. Cassidy, a Board-certified orthopedic surgeon, testified that he diagnosed claimant's injury of February 4, 1975 as a herniation of an inter-vertebral disc at L4-L5 for which conservative treatment had been prescribed, this treatment ending on December 23, 1975. Dr. Cassidy further testified that claimant was next examined on May 3, 1976 at which time claimant stated that his pain recurred when he lifted something heavy at work. Dr. Cassidy opined that claimant's back problems stemmed from the 1970 injury and that the injuries of February 4, 1975 and May 3, 1976 were re-injuries or aggravations of the original (1970) injury.
Finding pertinently that claimant, "as a result of his injury, now suffers from a herniated disc at L4-L5," the referee concluded as a matter of law that "Claimant has met his burden of proof by showing that both the nature and extent of his disability were not contemplated at the time the Final Receipt was signed and that his total disability recurred on May 24, 1976 as a direct result of the work-related injury to him of February 4, 1975." This is directly contrary to Dr. Cassidy's testimony that it was the result of a new injury on May 3, 1976.
When attempting to set aside a final receipt pursuant to Section 434 of The Pennsylvania Workmen's Compensation Act (Act), Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 1001 the claimant has the burden of conclusively proving by clear and convincing evidence that all disability attributable to the prior injury had not, in fact, terminated when the final receipt was executed. Workmen's ...