Appeals from the Orders of the Workmen's Compensation Appeal Board in case of Eleanor A. Sheibley v. ARA Food Service Company, No. A-79886, and in case of Herbert Reigner v. Berk-Tek, Inc., No. A-81396.
Mark S. Silver, Snelbaker, McCaleb & Elicker, for petitioner, Eleanor A. Sheibley.
John J. Speicher, Merkel & Spang, for petitioner, Herbert Reigner.
Philip D. Freedman, for respondent, ARA Food Services Company.
Richard A. Bausher, Stevens & Lee, for respondent, Berk-Tek, Inc.
President Judge Crumlish, Jr., and Judges Rogers, Williams, Jr., Craig, MacPhail, Doyle and Palladino. Opinion by Judge Palladino. Judge MacPhail concurs in the result only.
Section 434 of The Pennsylvania Workmen's Compensation Act (Act)*fn1 provides that a referee may set aside a final receipt "if it be shown that all disability due to the injury in fact had not terminated." These consolidated appeals address the question of what burden of proof a workmen's compensation claimant
must meet to satisfy Section 434's requirement. We present the factual and procedural history of each case separately, followed by our resolution of the question of law.
Claimant, Eleanor Sheibley, worked for ARA Food Services Company as an Assistant Food Director. She sustained a work-related injury on June 14, 1977, described by the Notice of Compensation Payable as "back and neck injuries." She returned to work on July 16, 1977, but continued to suffer residual problems from her injury, necessitating a neck brace. Claimant signed a final receipt, terminating the employer's liability, on December 2, 1977. On October 4, 1978, Claimant consulted Dr. T. S. Armstrong, an orthopedic surgeon, because she was experiencing pain in the cervical and thoracic areas.*fn2 Claimant continued to consult Dr. Armstrong on a regular basis. In February of 1979, she began experiencing elbow pain which was unrelated to her work-related injury, and which required surgery in December of 1979. Claimant missed approximately six weeks of work following the surgery, and returned to work on January 21, 1980. When she returned to work, Claimant was put on the night shift which required more physical labor than her previous shift. She found that she was unable to perform her job because of neck and elbow pain, and consequently she left on January 29, 1980, because of this pain. Claimant filed the Petition to Set Aside Final Receipt on February 4, 1980.
At the hearing before the referee, Claimant presented the deposition testimony of Dr. Armstrong, in addition to her own testimony. The referee found that
Claimant was not completely recovered from her injury when she returned to work on July 16, 1977, and that her subsequent treatment by several persons in the medical field was "credible and positive and unrefuted proof of her continuing disability." Based on the testimony of Dr. Armstrong, the referee also found that "Claimant was disabled from performing her regular employment on and after January 29, 1980, due to her work-related injury." The referee ...