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U. S. FIDELITY & GUARANTY COMPANY v. COMMONWEALTH PENNSYLVANIA (12/15/81)

decided: December 15, 1981.

U. S. FIDELITY & GUARANTY COMPANY, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, WORKMEN'S COMPENSATION APPEAL BOARD AND BRUCE ALLEN SMITH, RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in the case of Bruce Allen Smith v. U.S. Fidelity & Guaranty Co., No. A-77290.

COUNSEL

Raymond F. Keisling, Will & Keisling, for petitioner.

Amiel J. Caraman, Jr., with him Alexander J. Pentecost, for respondent, Bruce Allen Smith.

Judges Rogers, Blatt and Craig, sitting as a panel of three. Opinion by Judge Craig.

Author: Craig

[ 63 Pa. Commw. Page 192]

In this workmen's compensation appeal, the petitioner questions the board's affirmance of the referee's decision to set aside a final receipt, thus allowing further compensation on the basis that claimant, an insurance adjuster, remained totally disabled.

The claimant had been injured in the course of his employment when his automobile was struck from behind on September 28, 1971. Between the time of the accident and his dismissal in January, 1973, claimant missed a total of four weeks of work due to the injury. In October, 1973, claimant had surgery to correct degenerative damage to the cervical spine.

[ 63 Pa. Commw. Page 193]

By agreement, claimant received compensation until he signed a final receipt March 15, 1974. The employer opposed claimant's petition of January, 1976 to set aside the final receipt.

The referee found that claimant's total disability persisted after March 15, 1974, due to a "chronic and severe" anxiety reaction directly related to the accident.

To set aside a final receipt, there must be clear and convincing evidence that "all disability due to the injury in fact had not terminated at the time the final receipt was signed." Leedpak, Inc. v. Workmen's Compensation Appeal Board, 46 Pa. Commonwealth Ct. 512, 514, 406 A.2d 1193 (1979).

Claimant's physician's testimony was that claimant had cervical disc degenerative disease before the accident, but that the accident was the main aggravating factor causing the physical disability, even though other automobile accidents in which claimant had been involved may have been minor aggravating factors. The physician also noted that the claimant suffered depression resulting from the operation, which had been only partly successful.

A psychiatrist, engaged by the employer to examine the claimant, testified that claimant was "incapable" of work, and that claimant's fear of further surgery for correction of the remaining cervical problems was a significant contributing factor to a "chronic and severe" anxiety reaction. Although the employer points to some questions expressed by the psychiatrist, the psychiatric testimony was not inconsistent with the medical ...


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