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MANOJKUMAR D. PATEL v. SAUQUOIT FIBERS COMPANY AND PENNSYLVANIA MANUFACTURERS' ASSOCIATION INSURANCE CO. (01/23/81)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: January 23, 1981.

MANOJKUMAR D. PATEL, PETITIONER
v.
SAUQUOIT FIBERS COMPANY AND PENNSYLVANIA MANUFACTURERS' ASSOCIATION INSURANCE CO., RESPONDENTS

Appeal from the Order of the Workmen's Compensation Appeal Board in the case of Manojkumar D. Patel v. Sauquoit Fibers Company, No. A-75303.

COUNSEL

Manojkumar D. Patel, petitioner, for himself.

Kathleen A. Lenahan, with her, John R. Lenahan, Lenahan and Dempsey, for respondents.

Judges Wilkinson, Jr., Craig and Palladino, sitting as a panel of three. Opinion by Judge Craig.

Author: Craig

[ 56 Pa. Commw. Page 280]

In this workmen's compensation appeal, the claimant*fn1 questions a denial of benefits by the board,*fn2 affirming a referee's decision denying benefits to claimant, a quality control auditor.

On October 12, 1975, claimant suffered a work-related injury to his ankle, and from March 23, 1976 through July 18, 1976 received workmen's compensation at the rate of $88.90 per week. Claimant returned to his job on July 19, 1976, at his previous rate of pay, and on October 20, 1976 he signed a final settlement receipt.

Claimant, along with 150 fellow workers, was permanently laid off on October 22, 1976. Thereafter, claimant received unemployment compensation until October 22, 1977.

However, on July 16, 1977, the claimant filed a claim petition alleging a 25% permanent disability

[ 56 Pa. Commw. Page 281]

    emanating from his work-related injury suffered on October 12, 1975. Because the claimant had signed a final receipt, the referee properly treated the claim petition as a petition to set aside a final receipt.

A party wishing to set aside a final receipt has the burden of showing that all disability due to the injury in fact had not terminated at the time the final receipt was given. R.H. Johnson Construction Co. v. Workmen's Compensation Appeal Board, 35 Pa. Commonwealth Ct. 338, 385 A.2d 1035 (1978).

Based upon the record before us, we cannot hold that the referee capriciously disregarded competent evidence in reaching his decision that the claimant failed to sustain his burden of proof.*fn3

The legal conclusion of disability rests upon a finding of loss of earning power. Carpentertown Coal and Coke Co. v. Workmen's Compensation Appeal Board, 52 Pa. Commonwealth Ct. 134, 415 A.2d 450 (1980). Here claimant's medical expert, Dr. Carl Steindel, testified that claimant was 10 to 15% disabled due to tuberculosis in his right foot. But Dr. Steindel was admittedly unaware of claimant's job duties, and therefore unable to state whether the claimant could perform his former job.*fn4 Hence Dr. Steindel's testimony concerned only the amount of physiological impairment suffered by the claimant and was not itself competent to establish disability.

Both claimant and Dr. Steindel testified that the claimant was capable of performing sedentary jobs.

[ 56 Pa. Commw. Page 282]

This evidence provides substantial support for the referee's conclusion that no work-related disability prevented claimant from performing his normal type of work, a conclusion further buttressed by the finding that the claimant is licensed to practice law in the State of New York, having an office for that purpose in New Yory City.

Accordingly, we affirm the decision of the board.

Order

And Now, January 23, 1981, the order of the Workmen's Compensation Appeal Board, Docket No. A-75303 dated April 5, 1979, is affirmed, and claimant's appeal is dismissed.

Disposition

Affirmed.


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