Appeal from the Order of the Workmen's Compensation Appeal Board in case of Anna I. Yocum v. Leedpak, Inc., No. A-74509.
Charles E. Wasilefski, with him Hurwitz, Klein, Benjamin & Angino, for petitioner.
John S. Davidson, with him Pennebaker, Yost & Davidson, for respondent.
Judges Wilkinson, Jr., Mencer and MacPhail, sitting as a panel of three. Opinion by Judge Mencer.
[ 46 Pa. Commw. Page 513]
Anna I. Yocum (claimant) injured her right hand during the course of her employment with Leedpak, Inc., on January 22, 1975 and subsequently entered into a compensation agreement. On March 4, 1976, claimant signed a final receipt but did not return to
[ 46 Pa. Commw. Page 514]
work. After one petition to set aside the final receipt was dismissed for failure to present medical evidence, claimant filed a second petition on December 2, 1976. The referee denied the petition to set aside; however, the Workmen's Compensation Appeal Board (Board) reversed, set aside the final receipt, and remanded to give Leedpak an opportunity to show that work was available.*fn1 Leedpak appeals. We reverse.
The issue before us is whether the Board erred in concluding, in essence, that the referee capriciously disregarded competent evidence establishing the requisite proof for setting aside the final receipt, thereby reversing the referee's conclusion that the claimant failed to meet her burden of proof.
The party seeking to set aside a final receipt has the burden of showing by clear and convincing evidence that "all disability due to the injury in fact had not terminated" at the time the final receipt was signed. Kerchner v. Materials Transport Service, Inc., 29 Pa. Commonwealth Ct. 589, 592, 372 A.2d 51, 53 (1977), quoting from Section 434 of The Pennsylvania Workmen's Compensation Act (Act), Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 1001; R.H. Johnson Construction Co. v. Workmen's Compensation Appeal Board, 35 Pa. Commonwealth Ct. 338, 385 A.2d 1035 (1978).
The referee concluded that claimant had not met her burden of proof based upon his finding that there was no positive medical evidence to show that her continuing disability was the result of the January 22, 1975 injury.
[ 46 Pa. Commw. Page 515]
In reversing the referee, the Board incorrectly stated that, on a petition to set aside a final receipt, a presumption exists that the continuing disability in claimant's right hand is the result of the injury which is the subject of the compensation agreement and the claimant need not trace the continuing disability to the injury. There is no authority for this in the law. Section 434 of the Act clearly provides that it is "disability due to the injury " (emphasis added) which must be shown by the person seeking to set aside the final receipt. This clearly establishes that claimant must show not only a ...