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BETHLEHEM STEEL CORPORATION v. WORKMEN'S COMPENSATION APPEAL BOARD (GEORGE R. KRAUSE) (10/07/83)

decided: October 7, 1983.

BETHLEHEM STEEL CORPORATION, PETITIONER
v.
WORKMEN'S COMPENSATION APPEAL BOARD (GEORGE R. KRAUSE), RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in case of George R. Krause v. Bethlehem Steel Corporation, No. A-77375.

COUNSEL

Harold W. Budding, for petitioner.

William E. Schadler, for respondent, George R. Krause.

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

Author: Barbieri

[ 77 Pa. Commw. Page 421]

This Workmen's Compensation case was initiated by petition of the Claimant, George R. Krause, filed on May 1, 1978, originally on a Claim Petition Form, but amended at a hearing before the referee to include alternate treatment as a Petition to Set Aside a Final Receipt "depending on how the record comes out."

Actually, Claimant had been paid compensation under an agreement admitting liability for total disability from injuries suffered on December 21, 1973. Thereafter, Claimant signed a Final Receipt dated August 7, 1974, for compensation from the date of injury to May 28, 1974, as of which latter date Claimant returned to work with disability restrictions fixed by the medical examiner of the employer, Bethlehem Steel Corporation. In this proceeding, Claimant seeks restoration of benefits following a layoff on June 8, 1977. The referee, ruling that the Petition should be treated as a Petition to Set Aside the Final Receipt, granted the request to set aside the final receipt and ordered the resumption of payments as of June 8, 1977 for total disability. On appeal by Bethlehem Steel Corporation, the Workmen's Compensation Appeal Board affirmed. This appeal followed. We will affirm.

Bethlehem Steel Corporation raises four questions, two of which are so obviously lacking in merit as to warrant no serious consideration by this Court. For example, that the referee and the Board erred in assessing counsel fees of twenty percent against the employer, when the order could not be clearer that no counsel fees were assessed against the employer, but the customary counsel fee of twenty percent was awarded to counsel, specifically to be paid out "of the compensation awarded to the claimant."

We will address the questions raised as to setting aside the final receipt: (1) whether there is support in

[ 77 Pa. Commw. Page 422]

    the testimony for the referee's tenth finding of fact that the "final receipt was executed by the claimant-petitioner by reason of intentional and/or unintentional deception," and (2) whether or not the two year limitation in Section 434 of The Pennsylvania Workmen's Compensation Act (Act),*fn1 commencing as of the date when the final receipt was signed, should be interposed as a bar to the relief otherwise due the claimant.

Referring to the record, we find that the testimony in support of the referee's findings is virtually uncontradicted. Claimant returned to work on the date stated in the final receipt, May 28, 1974, not without disability and not as is stated in the final receipt without any loss in earning power, but with major disability restrictions imposed by Bethlehem's physician, Dr. Hauer. Dr. Hauer was not called, nor was any other medical witness or medical testimony presented by Bethlehem. Claimant's so-called layoff as of June 8, 1977, was not due to lack of work, but was due to lack of work that would fit into the company physician's limitations imposed because of Claimant's continuing disability. Incidentally, this was not Claimant's first layoff of this type. He was laid off on May 13, 1976 and returned to work for the period from January 17 to March 11, 1977 and was in layoff again until he returned to work for the period from May 23, 1977 to June 3, 1977.

Furthermore, Claimant received unemployment compensation payments, with supplements by Bethlehem during the layoff periods. It seems relevant that when Claimant returned for treatment to Dr. Raymond M. Dorsch, who is Board Certified as an orthopedic physician, in June of 1977, ...


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