Appeal from the Order of the Workmen's Compensation Appeal Board in case of George Holshue v. Robideau Express, No. A-84328.
Carl Mazzocone, Kates, Livesey & Mazzocone, for petitioner.
John P. Knox, with him, David R. Weyl, Timoney, Knox, Hasson & Weand, for respondent, Robideau Express.
Judges Doyle, Palladino and Barbieri, sitting as a panel of three. Opinion by Judge Doyle.
[ 84 Pa. Commw. Page 254]
Before this Court is an appeal by George Holshue (Petitioner) from a decision and order of the Workmen's Compensation Appeal Board (Board) affirming a referee's denial of Petitioner's petition to set aside a final receipt. We affirm.
Petitioner suffered injuries to his lower back and right leg on August 1, 1977, while unloading a trailer of pallets, part of his job as a maintenance man for Robideau Express (Employer). Workmen's compensation
[ 84 Pa. Commw. Page 255]
benefits were paid for these injuries until May, 1978, at which time a final receipt was executed by Petitioner. Despite signing the final receipt, Petitioner did not return to work. Benefits were renewed on September 1, 1978, and paid until a second final receipt was executed on November 10, 1978. Again Petitioner did not return to work and on July 12, 1979, he filed a petition to set aside his final receipt averring that he continued to suffer total and permanent disability resulting from damage to his knee incurred in his August 1, 1977 accident. Employer filed an answer contesting the petition and referee's hearings were held, at which Petitioner and an orthopedic specialist who had examined him on several occasions, Edgar L. Ralston, M.D., testified to Petitioner's continuing pain, discomfort and inability to return to work as a maintenance man. Employer, in turn, presented the deposition testimony of an orthopedic specialist who had examined Petitioner at the behest of Employer and found him to be free of objective symptomology and capable of returning to work. Also testifying for Employer was Joseph Turner, a private investigator, who presented films he had taken on May 27, 1980 of a man, whom he identified as Petitioner, stooping, kneeling and crawling while repairing a sliding glass door at Petitioner's apartment. Following the hearings, the referee issued a decision denying the petition to set aside the final receipt. On appeal the Board, without taking additional evidence, affirmed. The appeal to this Court followed.
[ 84 Pa. Commw. Page 256]
It is axiomatic that, to have a petition to set aside a final receipt granted, the petitioner must establish by clear and convincing evidence that all disability attributable to the prior work related injury had not terminated at the point in time when the final receipt was executed. Sihelnik v. Workmen's Compensation Page 256} Appeal Board (National Sugar Refining Co.) 74 Pa. Commonwealth Ct. 278, 459 A.2d 895 (1983). And where, in a case such as this, the decision of the referee is contrary to the petitioner and the Board has affirmed without taking additional evidence, this Court's scope of review is limited to determining whether the necessary findings of fact are mutually consistent and also consistent with the conclusions of law and whether there was a capricious disregard of competent evidence. American Refrigerator Equipment Co. v. Workmen's Compensation Appeal Board, 31 Pa. Commonwealth Ct. 590, 377 A.2d 1007 (1977). In conducting our review, this Court must afford the benefit of the most favorable inferences to be drawn from the evidence to the party which prevailed below. Id.
In his appeal, Petitioner first asserts that the referee, in finding of fact 6, wrongfully attributed to him the burden of proving that he has sought employment which is compatible with his condition. Finding of fact 6 reads:
The Referee finds that Mr. Holshue has not made good faith efforts to secure employment since August 1, 1977. On May 3, 1978 he made one effort to secure light work with his former employer. Apart from that he merely testified ...