Appeal from the Order of the Workmen's Compensation Appeal Board in case of Harwood Robbins v. Donald Acor Trucking Co., No. A-81359.
Clifford A. Rieders, Murphy, Mussina, Harris, Travis, Rieders & Humphrey, for petitioner.
Kathleen Lenahan, with her Joseph P. Lenahan, Lenahan & Dempsey, for respondents.
Judges Rogers, Williams, Jr. and Craig, sitting as a panel of three. Opinion by Judge Rogers.
[ 78 Pa. Commw. Page 145]
The claimant in this workmen's compensation case has appealed from an order of the Workmen's Compensation Appeal Board reversing a referee's grant of the prayer of his petition to set aside a final receipt. The Board held that the claimant had failed to prove by clear and convincing evidence that all disability attributable to his work related injury had not terminated when the final receipt was executed.
On February 15, 1977 the claimant suffered an injury to his left foot while in the course of his employment. On November 3, 1977 he executed a final receipt. The claimant then filed a petition to set aside the final receipt.*fn1 Before any proceedings were had on the petition to set aside, the employer, its carrier and the claimant entered into a supplemental agreement dated June 25, 1979 in which they agreed that the final receipt dated November 3, 1977 should be set aside and that the claimant's disability payments should be reinstated as of April 8, 1979. The parties also agreed that the claimant "will be able to return to work on September 30, 1979."
[ 78 Pa. Commw. Page 146]
Thereafter the claimant executed a final receipt dated July 3, 1979 in which he acknowledges receipt of $2,487.50 as compensation for disability and in which he declares that "I was able to return to work on September 30, 1979."
The supplemental agreement dated June 25, 1979 and the final receipt dated July 3, 1979 each contains two material alterations. In both agreements the phrase "without loss of earning power due to the disease or injury suffered by me" was crossed out and the notation "The [claimant's] return [to work] date is an estimate made on or about June 1979 which is subject to change" is typewritten.
The claimant next filed a petition to set aside attacking the final receipt dated July 3, 1979. The referee conducted hearings and thereafter set aside the final receipt holding that the claimant had proven that his disability had persisted since the date of his injury and existed at the time he executed the final receipt. The referee wrote:
Your referee has carefully reviewed the entire record and finds testimony of the claimant credible, that he has not recovered from his 1977 injury and that he is not able to return to his former occupation, the one which he held at the time of his injury. The overall testimony of both physicians and particularly that of Dr. Fred R. Amsler supports your referee's finding that the claimant cannot return to his time of injury position and that his disability has continued since his injury and the signing of the final receipts.
The Appeal Board, as noted, reversed. The reason given was, "[we] failed to find anywhere in the testimony of claimant's medical witness a statement that the claimant continued to suffer disability on the ...