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WALTER LESNESKI v. WORKMEN'S COMPENSATION APPEAL BOARD (PITTSBURGH PRESS COMPANY AND VIGILANT INSURANCE COMPANY) (12/27/85)

decided: December 27, 1985.

WALTER LESNESKI, PETITIONER
v.
WORKMEN'S COMPENSATION APPEAL BOARD (PITTSBURGH PRESS COMPANY AND VIGILANT INSURANCE COMPANY), RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in the case of Walter Lesneski v. Pittsburgh Press Company, No. A-84100, dated November 25, 1983.

COUNSEL

Amiel B. Caramanna, Jr., with him, Alexander J. Pentecost, for petitioner.

Raymond F. Keisling, for respondents.

Judges Craig and Doyle, and Senior Judge Kalish, sitting as a panel of three. Opinion by Judge Craig.

Author: Craig

[ 94 Pa. Commw. Page 19]

Walter Lesneski questions a Workmen's Compensation Appeal Board order which reversed a referee's decision restoring his eligibility for disability payments.

Lesneski, a driver for the Pittsburgh Press, was injured in the course of his employment in August, 1976, and received compensation benefits through October, 1977. At that time, he signed a final receipt*fn1 and returned to work. In July, 1980, Lesneski, complaining of pain and no longer employed by the Press, filed a petition to set aside the final receipt that he had signed in 1977.

A referee, considering deposition testimony, found that Lesneski "was still disabled when he signed the final receipt on October 31, 1977." The employer appealed, alleging that the medical depositions did not prove that Lesneski remained disabled at the time he signed the final receipt, and therefore that the referee was incorrect in his ruling. The board reversed the referee and dismissed Lesneski's petition. This appeal followed.

In his brief, Lesneski contends that there is substantial evidence on record to support the referee's finding that Lesneski's disability had not terminated at the time he signed the final receipt. Significantly, Lesneski relies upon his own deposition testimony as well as the supporting depositions provided by two physicians. However, although the referee apparently considered Lesneski's deposition, it was not in the original record compiled by the board and certified to us. Because of questions regarding the status of Lesneski's deposition this court, in a separate opinion and order, remanded this case to the board in order to determine

[ 94 Pa. Commw. Page 20]

    whether or not Lesneski's deposition was, in fact, a part of the official record before us and to reconsider its decision in the case. Accordingly, the board conducted an additional hearing and although it received no new evidence, it concluded that Lesneski's deposition had in fact been admitted into the record and reissued its original November 25, 1983 decision reversing the referee and denying benefits. We reverse.

In workmen's compensation cases, the referee, not the board, is the ultimate factfinder. Garcia v. Workmen's Compensation Appeal Board (Bethlehem Steel Corporation), 503 Pa. 342, 469 A.2d 585 (1983). In his findings of fact, the referee stated:

4. Claimant did return to work at his job as a truck driver for the defendant and continued to work but missed several periods of work because he was still experiencing pain and discomfort in his lower back and left leg.

5. Claimant had to stop work May 16, 1980, due to the pain and discomfort which made it difficult for him to ...


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