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LARRY C. DAVIS v. COMMONWEALTH PENNSYLVANIA (08/17/81)

decided: August 17, 1981.

LARRY C. DAVIS, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, WORKMEN'S COMPENSATION APPEAL BOARD AND CALL CHRONICLE NEWSPAPERS, INC., RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in the case of Larry C. Davis v. Call Chronicle Newspapers, Inc., No. A-78702.

COUNSEL

Richard J. Orloski, Stamberg, Caplan & Calnan, for petitioner.

Charles W. Elliott, with him John P. Thomas, Thomas and Hair, for respondents, Call Chronicle Newspapers, Inc.

Judges Mencer, Craig and MacPhail, sitting as a panel of three. Opinion by Judge Mencer.

Author: Mencer

[ 61 Pa. Commw. Page 340]

Larry C. Davis (petitioner) has appealed from a decision of the Workmen's Compensation Appeal Board (Board) which upheld the referee's decision to award benefits for only one month. We affirm.

The petitioner injured his back and neck at work on October 28, 1974. He was paid compensation for this injury by Call Chronicle Newspapers, Inc. (employer). A final receipt was executed on or about January 3, 1975.

[ 61 Pa. Commw. Page 341]

On November 11, 1974, the petitioner had returned to "light work" with the employer, in which capacity he continued until January 22, 1975, when he and a co-worker were assigned to move 230 boxes of old newspaper clippings from one warehouse to another. The petitioner claims that he reinjured his back while moving the boxes. He reported the injury to his supervisor and sought medical attention.

The petitioner did not work from January 23, 1975 until February 21, 1975. He was then offered the job of night watchman by the employer. This job required that the petitioner make an hourly tour of the employer's four-story building, using one of two stairwells to travel between floors. The petitioner tried the job for 6 hours, left, and did not return. He claimed that walking and climbing stairs aggravated his injured back and neck. The petitioner was examined on February 27, 1975 by the employer's physician, Dr. Richard White, who found that all disability had ceased.

The petitioner filed a claim for compensation for the January 22 injury. This claim was treated as a petition to set aside the final receipt of January 3, pursuant to Section 434 of The Pennsylvania Workmen's Compensation Act, Act of June 2, 1915, P.L. 736, as amended, 77 P.S. ยง 1001. After extensive hearings, the referee awarded benefits for the period between January 23, 1975 and February 20, 1975, inclusive. The referee's findings and conclusions were upheld by the Board and this appeal followed.

Where a workmen's compensation claimant seeks to set aside a final receipt, he has the burden of proving, by clear and convincing evidence, that all disability attributable to the original injury had not terminated when the final receipt was executed. Ferguson v. Workmen's ...


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