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JOSEPH J. WARNAS v. WORKMEN'S COMPENSATION APPEAL BOARD (SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY (10/06/83)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: October 6, 1983.

JOSEPH J. WARNAS, PETITIONER
v.
WORKMEN'S COMPENSATION APPEAL BOARD (SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY, KNOWN AS SEPTA), RESPONDENTS

Appeal from the Order of the Workmen's Compensation Appeal Board in case of Joseph Warnas v. SEPTA, No. A-82706.

COUNSEL

Joseph J. Warnas, petitioner, for himself.

John C. McFadden, with him Paul V. Tatlow, for respondents.

President Judge Crumlish, Jr. and Judges Barry and Blatt, sitting as a panel of three. Opinion by President Judge Crumlish, Jr.

Author: Crumlish

[ 77 Pa. Commw. Page 409]

Joseph Warnas appeals a Workmen's Compensation Appeal Board denial of his petition to set aside a final receipt. We affirm.

On August 21, 1977, Warnas sustained a work-related injury and received benefits. On November 3, 1977, he executed a final receipt and returned to work the following day. On December 30, 1977, he was discharged for exhausting his sick leave. On June 23, 1978, he filed a claim petition which was subsequently amended to a petition to set aside the final receipt. The petition was denied.

Section 434 of The Pennsylvania Workmen's Compensation Act*fn1 provides:

A final receipt, given by an employe . . . entitled to compensation under a compensation agreement notice or award, shall be prima facie evidence of the termination of the employer's liability to pay compensation under such agreement notice or award: Provided, however, That

[ 77 Pa. Commw. Page 410]

    a referee . . . may, at any time within three years from the date to which payments have been made, set aside a final receipt, upon petition filed with the department . . . if it be shown that all disability due to the injury in fact had not terminated.

Warnas must prove "by clear and convincing evidence that all disability attributable to the prior work related injury has not in fact terminated when the final receipt was executed." Snyder v. Workmen's Compensation Appeal Board, 50 Pa. Commonwealth Ct. 227, 229, 412 A.2d 694, 695 (1980).

Warnas contends that the referee capriciously disregarded competent evidence. For us to find a capricious disregard of competent evidence, we must determine that the referee willfully and deliberately disbelieved an apparently trustworthy witness whose testimony one of ordinary intelligence could not possibly challenge. Sayre v. Workmen's Compensation Appeal Board, 67 Pa. Commonwealth Ct. 68, 71, 445 A.2d 1362, 1363 (1982).

The referee was not persuaded that Warnas suffered residuals of the work-related injury after signing the final receipt. In fact, the referee noted that Warnas had withheld history of a prior injury from examining doctors, including the doctor who testified in his behalf. Additionally, the referee noted inconsistencies in Warnas' testimony. "Questions concerning credibility of witnesses, the resolution of conflicts in the testimony, and the weight to be given the evidence, are matters for determination by the referee, not this Court." Snyder, 50 Pa. Commonwealth Ct. at 229, 412 A.2d at 695. Accordingly, the referee did not capriciously disregard competent evidence on the record.

[ 77 Pa. Commw. Page 411]

Affirmed.*fn2

Order

The order of the Workmen's Compensation Appeal Board, No. A-82706 dated November 26, 1982, is hereby affirmed.

Disposition

Affirmed.


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