Appeal from the Order of the Workmen's Compensation Appeal Board in the case of Maxine Adkins v. Emerald Mines Corp., No. A-81525.
David F. Pollock, Pollock, Pollock & Thomas, for petitioner.
Paul E. Sutter, Hirsch, Weise & Tillman, for respondents.
Judges Rogers, Craig and Doyle, sitting as a panel of three. Opinion by Judge Craig.
[ 78 Pa. Commw. Page 222]
Claimant Maxine Adkins has appealed from a decision of the Workmen's Compensation Appeal Board which affirmed a referee's action granting her petition to set aside a final receipt, under section 434 of The Pennsylvania Workmen's Compensation Act, Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 1001, but suspending payment of compensation on the ground that she had "failed to meet the burden imposed by section 413 [77 P.S. § 772] . . . in proving an increase in disability reflected in a loss in earning power. . . ."
We first must decide if this case involves only the setting aside of a final receipt, or if it also involves a claimant's modification petition under section 413, seeking a restoration of compensation for an increase or recurrence of disability.
Resolution of that threshold question is necessary in order to determine which of the parties had the respective burdens of proof, on which our scope of review depends. Concerning the setting aside of a final receipt under section 434, Maciupa v. Union Switch and Signal, 13 Pa. Commonwealth Ct. 126, 129-30, 317 A.2d 901, 903 (1974), states:
When attempting to set aside a final receipt the claimant must meet his burden of conclusive proof with clear and convincing evidence. . . . If the claimant does carry his burden and succeeds in having the final receipt set aside, the effect is to revive the compensation agreement automatically and to restore the parties to the position they would have been in if the receipt had never been signed. The issue then becomes the
[ 78 Pa. Commw. Page 223]
extent of the claimant's disability, and the burden of showing that such has been reduced from that payable under the compensation agreement is upon the defendant. . . . (Citations omitted.)
In Altemose Co. v. Workmen's Compensation Appeal Board, 60 Pa. Commonwealth Ct. 511, 518-19, 432 A.2d 267, 271 (1981), we expressed the contrast between section 434 and section 413 by stating:
In Cambria County Commissions [v. Workmen's Compensation Appeal Board, 57 Pa. Commonwealth Ct. 409, 426 A.2d 249 (1981)] Judge Rogers contrasted Sections 434 (petition to set aside final receipt) and 413 (petition to reinstate compensation) of the Act and clearly delineated the different standards applicable to each section. Although Section 434 requires that a claimant prove that his disability had not terminated at the time the final receipt was executed, Section 413 mandates that a claimant show that his disability had recurred. Thus, in seeking to set aside a final receipt, a claimant must establish not that his ...