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KEYSTONE BAKERY v. WORKMEN'S COMPENSATION APPEAL BOARD (LACK) (03/05/85)

decided: March 5, 1985.

KEYSTONE BAKERY, INC., AND RANGER INSURANCE COMPANY, PETITIONERS
v.
WORKMEN'S COMPENSATION APPEAL BOARD (LACK), RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in the case of Matthew A. Lack v. Keystone Bakery, Inc., No. A-84584.

COUNSEL

James M. Burton, Rosenzweig & Burton, for petitioner.

Robert J. Campbell, John A. Miller & Associates, Ltd., for respondent, Matthew A. Lack.

Judges Rogers, Craig and Palladino, sitting as a panel of three. Opinion by Judge Palladino. Judge Williams, Jr., did not participate in the decision in this case.

Author: Palladino

[ 88 Pa. Commw. Page 112]

Keystone Bakery (Employer) appeals from a decision of the Workmen's Compensation Appeal Board (Board) which affirmed a referee's order setting aside a Final Receipt signed by Matthew Lack (Claimant).

The referee made the following findings of fact. On November 16, 1980, Claimant fell and twisted his right leg while in the course of his employment with the Employer. Pursuant to a Notice of Compensation Payable, Claimant received compensation from November 17, 1980 until February 1, 1981, when he was able to return to work without a loss in earning power. Claimant returned to a specially created light-duty position which did not require him to be on his feet. Claimant signed a Final Receipt on February 14, 1981.

On March 2, 1981 Claimant was advised by the Employer's president, Mr. Coffey, that the specially created job was being eliminated and that Claimant could: 1) return to work on the line, which involved continuous standing; 2) take an early retirement; or

[ 88 Pa. Commw. Page 1133]

) return to his prior position as a night supervisor, which also involved prolonged periods of walking and standing. Claimant has not worked since the elimination of the special position.

On July 22, 1981 Claimant filed a Claim Petition which was amended to a Petition to Set Aside Final Receipt at the referee's hearing. Claimant alleged that his disability had not, in fact, terminated on February 1, 1981, and that his disability had recurred on March 2, 1981. The referee found that the disability had not terminated on February 1, 1981 and set aside the Final Receipt. The Board affirmed, holding that the testimony of Claimant's physician, Dr. Hirsch, was sufficient to support the findings of the referee.

Where, as here, the party with the burden of proof prevailed before the referee and the Board did not take any additional evidence, our scope of review is to determine whether the findings of fact of the referee are supported by substantial evidence, and whether the referee committed an error of law or violated constitutional rights in his decision. Republic Steel Corp. v. Workmen's Compensation Appeal Board (Deppenbrook), 82 Pa. Commonwealth Ct. 596, 476 A.2d 989 (1984).

The Employer raises three issues in this appeal: 1) the referee erred in not concluding that Claimant's disability was due to coronary problems unrelated to his job; 2) the referee erred by not finding Claimant to be only partially disabled; and 3) the ...


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