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ASTRO REMODELING AND WESTMORELAND CASUALTY COMPANY v. WORKMEN'S COMPENSATION APPEAL BOARD (JULYE) (03/01/84)

decided: March 1, 1984.

ASTRO REMODELING AND WESTMORELAND CASUALTY COMPANY, PETITIONERS
v.
WORKMEN'S COMPENSATION APPEAL BOARD (JULYE), RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in case of Benjamin Julye v. Astro Remodeling, No. A-81500.

COUNSEL

Earl T. Britt, with him Lewis R. Olshin and Marcie J. Weintraub, Duane, Morris & Heckscher, for petitioners.

Sidney E. Herold, for respondents.

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

Author: Blatt

[ 80 Pa. Commw. Page 553]

Astro Remodeling and Westmoreland Casualty Company (petitioners) appeal an order of the Workmen's

[ 80 Pa. Commw. Page 554]

Compensation Appeal Board (Board) which set aside a final receipt, thereby granting benefits, and also denied a claim for a subrogation credit.

On December 5, 1975, Benjamin Julye (claimant) was injured in a vehicular accident while in the scope of his employment, and began receiving compensation. On May 24, 1976, while still receiving benefits but not yet fully recovered from the original injury, the claimant accepted employment elsewhere. On July 12, 1976, he signed a final receipt which his attorney did not deliver to the employer until April of 1977 due to third party litigation arising out of the original injury, which was settled for $60,000. In June of 1977, he again began suffering from his original injury, and in August of that year he was hospitalized and received a laminectomy. In February of 1978, he was able to return to light work with limited lifting and bending restrictions.

Where the party with the burden of proof has prevailed before the Board, our scope of review is limited to determining whether or not constitutional rights were violated, errors of law were committed, or necessary findings of fact are unsupported by substantial evidence. Schiavo v. Workmen's Compensation Appeal Board (Frank's Beverages), 68 Pa. Commonwealth Ct. 479, 449 A.2d 816 (1982). Furthermore, when the claimant resumes work with either no loss of earning power or no obvious residual disability, the clear and convincing evidence necessary to show a continuing disability must be established by unequivocal medical testimony. Akers Central Motor Lines v. Workmen's Compensation Appeal Board, 44 Pa. Commonwealth Ct. 185, 403 A.2d 206 (1979).

[ 80 Pa. Commw. Page 555]

Section 434 of The Pennsylvania Workmen's Compensation Act (Act), Act of June 2, 1915, P.L. 736, as Page 555} amended, 77 P.S. ยง 1001, provides, in pertinent part, as follows:

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 ...


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