Appeal from the Order of the Workmen's Compensation Appeal Board in case of Thomas E. Hartzog, Jr. v. Pasquale Charmley, No. A-78278.
Donald R. Rigone, Fisher, Long & Rigone, for petitioners.
John Solomon, for respondents.
Judges Blatt, Williams, Jr. and MacPhail, sitting as a panel of three. Opinion by Judge Williams, Jr.
[ 60 Pa. Commw. Page 187]
Pasquale Charmley (employer) and American States Insurance Company (insurer) appeal from an Order of the Workmen's Compensation Appeal Board (Board) which affirmed a referee's decision granting the petition of Thomas E. Hartzog, Jr. (claimant) to set aside a final receipt.
The claimant is a plumber who suffered a back injury while working for the employer on October 7, 1977. This injury resulted in surgical removal of a herniated disc in February, 1978. As a result of this injury and the attendant surgery, claimant received compensation, pursuant to a notice of compensation payable, from October 15, 1977, until January 19, 1979. It was on January 19, 1979, that the final receipt in question was executed.
[ 60 Pa. Commw. Page 188]
The claimant returned to full employment with the employer on January 22, 1979. After working for approximately a week as a laborer, he experienced a recurrence of his back pains. Claimant's pains were of such severity that he was forced to cease working on January 30, 1979, and to resume treatment with Dr. Douglas T. Corwin, the physician who had performed the claimant's original surgery in February, 1978.
On March 30, 1979, claimant filed a petition to set aside the final receipt of January 19, 1979. The petition alleged that claimant's original back injury had been severely aggravated by "heavy work consisting of ditch digging"; that he was unable to work; and that he was continuing treatment with Dr. Corwin, which treatment included hospitalization and the wearing of a back brace. Two hearings on the petition were held before a referee; after which the referee granted claimant's petition. The referee found that claimant again became totally disabled on January 30, 1979, as a result of a recurrence of his original injury of October 7, 1977; and that all of claimant's disability due to the October 7, 1977 injury had not terminated at the time claimant executed the final receipt in question on January 19, 1979.
The employer's insurer appealed the referee's decision to the Board, which affirmed. This appeal from the Board's Order followed.
A claimant who seeks to set aside a final receipt has the burden of proving conclusively, by clear and convincing evidence, that all disability attributable to the prior injury had not in fact terminated at the time the final receipt was executed. Snyder v. Workmen's Compensation Appeal Board, 50 Pa. Commonwealth Ct. 227, 412 A.2d 694 (1980); Leedpak, Inc. v. Workmen's Compensation Appeal Board, 46 Pa. ...