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GEORGE AUERBACH v. WORKMEN'S COMPENSATION APPEAL BOARD (AUERBACH ET AL.) (02/14/84)

decided: February 14, 1984.

GEORGE AUERBACH, PETITIONER
v.
WORKMEN'S COMPENSATION APPEAL BOARD (AUERBACH ET AL.), RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in case of George Auerbach v. John Auerbach, No. A-78293.

COUNSEL

Michael S. Valimont, Power, Bowen & Valimont, for petitioner.

James M. Schildt, with him Robert M. Donovan, Williams, Schildt & MacMinn, for respondents.

Judges Rogers, MacPhail and Barry, sitting as a panel of three. Opinion by Judge Rogers.

Author: Rogers

[ 80 Pa. Commw. Page 302]

George Auerbach, a workmen's compensation claimant, has appealed from an order of the Workmen's Compensation Appeal Board, reversing the referee's decision that the limitation of Section 434 of The Pennsylvania Workmen's Compensation Act, Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 1001, was not a bar to the claimant's petition to set aside a final receipt. Section 434 of the Act*fn1 provides that:

A final receipt, given by an employe or dependent 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

[ 80 Pa. Commw. Page 303]

    under such agreement notice or award: Provided, however, That a referee designated by the department 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, or on the department's own motion, if it be shown that all disability due to the injury in fact had not terminated.

The claimant suffered a work-related injury to his back on August 31, 1972 after falling from a scaffold. He received compensation until he was discharged by his physician to full activities on July 30, 1973. On October 11, 1973, the claimant signed a final receipt. He did not see a doctor again about his back until October 8, 1976 and was then diagnosed as suffering from a degenerating disc. He testified that beginning "a couple of days" after his visit to the doctor he made a series of calls to his employer's insurance company inquiring about further compensation but that representatives of the company put him off by telling him that they could not help until they got his records from Albany and that the law was going to change soon in a way that would benefit him. On September 12, 1977, the claimant filed his petition to set aside the final receipt.

The referee concluded that the limitation of Section 434 of the Act had been tolled by "an unintentional deception, which would amount to fraud." He based this conclusion on his findings that "[a]t the time the Claimant signed the Final Receipt in October of 1973, all disability had not terminated and the Claimant did not know exactly what he was signing" and that "[n]o one explained the Final Receipt to the Claimant." Having also found that the claimant "became

[ 80 Pa. Commw. Page 304]

    completely disabled again because of his back injury on June 26, 1978," the referee ordered that the claimant ...


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