Appeal from the Order of the Workmen's Compensation Appeal Board in the case of Vito G. Lorusso v. Dunmore School District, No. A-86517.
David E. Heisler, with him, Matthew D. Dempsey, Lenahan & Dempsey, P.C., for petitioner.
David L. Kurtz, for respondent, Vito G. Lorusso.
Judges Rogers, MacPhail and Doyle, sitting as a panel of three. Opinion by Judge Doyle. Judge Williams, Jr. did not participate in the decision in this case.
[ 89 Pa. Commw. Page 369]
Dunmore School District (Employer) appeals from the order of the Workmen's Compensation Appeal Board (Board) which affirmed the referee's decision setting aside a final receipt under Section 434 of The Pennsylvania Workmen's Compensation Act (Act),*fn1 77 P.S. § 1001.
Vito Lorusso (Claimant) suffered a right inguinal hernia as a result of a work related injury on August 11, 1981, and began receiving benefits under a notice of compensation payable filed by the Employer on October 8, 1981. Claimant underwent surgery for repair of the hernia on October 26, 1981. On March 2, 1982,
[ 89 Pa. Commw. Page 370]
Claimant signed a final receipt but attached to it a note which stated that he had not yet recovered from his injury and that he desired a hearing on the decision to terminate benefits. No hearing was ever scheduled on this request. Claimant did not return to work, and was later hospitalized for an operation to remove kidney stones. In October of 1982, he was again diagnosed as suffering from a right inguinal hernia, for which additional surgery was still pending at the time of the hearing on June 28, 1983.
On November 12, 1982, Claimant filed a petition to reinstate compensation with the Board. Hearings were held before the referee during which Claimant first requested that his petition be considered as a petition to set aside final receipt, and then requested that it again be considered a petition to reinstate compensation. The referee considered the petition as a petition to set aside final receipt, and found that Claimant had not recovered from the disability attributable to his work-related injury. Accordingly, the referee set aside the final receipt, and the Board later affirmed. Appeal to this Court followed.
On appeal Employer contends that the findings of the referee were not supported by substantial evidence in the record.*fn2 Initially in this regard Employer suggests that since Claimant chose to pursue a petition to reinstate rather than a petition to set aside, it was his burden to prove a recurrence of his disability. We recognize that Claimant's burden of proof depends upon the nature of his petition. In a petition to reinstate
[ 89 Pa. Commw. Page 371]
benefits under Section 413 of the Act,*fn3 Claimant's burden is to establish that a disability has increased or recurred after the date of the prior award. Memorial Osteopathic Hospital v. Workmen's Compensation Appeal Board (Brandon), 77 Pa. Commonwealth Ct. 518, 466 A.2d 741 (1983). On the other hand, in a petition to set aside a final receipt under Section 434 of the Act, Claimant's burden is to prove by sufficient credible competent evidence that all disability attributable to the injury had not, in fact, terminated when the final ...