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CARL D. WOOL v. WORKMEN'S COMPENSATION APPEAL BOARD (WOOL'S BLOCK WORKS) (10/05/82)

decided: October 5, 1982.

CARL D. WOOL, PETITIONER
v.
WORKMEN'S COMPENSATION APPEAL BOARD (WOOL'S BLOCK WORKS), RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in the case of Carl D. Wool v. Wool's Block Works, No. A-80498.

COUNSEL

David R. Bahl, McCormick, Reeder, Nichols, Sarno, Bahl & Knecht, for petitioner.

James M. Scanlon, Scanlon, Howley & Scanlon, for respondent, Wool's Block Works.

Judges Blatt, Williams, Jr. and Doyle, sitting as a panel of three. Opinion by Judge Blatt.

Author: Blatt

[ 69 Pa. Commw. Page 278]

Carl D. Wool (claimant) appeals here from the denial of his petition to set aside a final receipt for workmen's compensation benefits. The Workmen's Compensation Appeal Board (Board), which reversed the referee's decision, held that the claimant had failed to present unequivocal medical testimony that his current disability existed when the final receipt was signed.

During the course of his employment, the claimant slipped from a truck and landed on his back, sustaining a lumbar strain. Although this fall occurred on November 25, 1976, he continued working until January 10, 1977, when he left work for a period of three months. He received disability benefits from January 10, 1977 until April 9, 1977, and returned to work on April 15, 1977, without loss of earning power. He executed a final receipt on June 1, 1977.

Upon returning to work, the claimant had resumed his duties of carrying and loading cinder and concrete building blocks ranging in weight from six to 75 pounds, and averaging 45 pounds. On August 26, 1977, four months later, he again left work, however, claiming that the residual effects of his initial injury prevented him from working any longer. He filed a petition on May 12, 1978 to set aside the final receipt, alleging that the second disability resulted from the original work injury of November 25, 1976.

[ 69 Pa. Commw. Page 279]

To set aside a final receipt pursuant to Section 434 of The Pennsylvania Workmen's Compensation Act (Act),*fn1 a claimant has the burden of conclusively proving by clear and convincing evidence that all disability attributable to the prior injury had not terminated when the final receipt was executed. Akers Central Motor Lines v. Workmen's Compensation Appeal Page 279} Board, 44 Pa. Commonwealth Ct. 185, 403 A.2d 206 (1979). Furthermore, in cases such as the instant one wherein the claimant has returned to work with no loss of earning power and with no obvious residual disability, his burden of proof is met only by clear and convincing evidence in the form of unequivocal medical testimony that the current disability existed at the time that the final receipt was signed. Ferguson v. Workmen's Compensation Appeal Board, 55 Pa. Commonwealth Ct. 394, 423 A.2d 63 (1980). The claimant, who had the burden of proof, prevailed before the referee and the Board took no additional evidence, so our scope of review is limited to a determination of whether or not constitutional rights were violated, an error of law was committed, or a necessary finding of fact of the referee was unsupported by substantial evidence. Rowan v. Workmen's Compensation Appeal Board, 58 Pa. Commonwealth Ct. 56, 426 A.2d 1304 (1981).

The sole issue for our determination, therefore, is whether or not the Board erred in determining that there was no unequivocal medical evidence here to support the claimant's contention that the current disability existed at the time he executed the final receipt.

The employer offered the testimony of Dr. Charles Sutliff, a Board-certified specialist in physical medicine and rehabilitation. After administering tests between March 21, 1977 and April 4, 1977, Dr. Sutliff advised the claimant to return to work, because in his professional opinion, based upon reasonable medical certainty, the claimant was able to return to work in April of 1977 and was not then suffering from any disability. Dr. Sutliff further testified that he examined the claimant on five later occasions during September of 1977 and ...


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