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BETHLEHEM STEEL CORPORATION v. WORKMEN'S COMPENSATION APPEAL BOARD (TURJAK) (03/03/86)

decided: March 3, 1986.

BETHLEHEM STEEL CORPORATION, PETITIONER
v.
WORKMEN'S COMPENSATION APPEAL BOARD (TURJAK), RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in the case of Joseph F. Turjak v. Bethlehem Steel Corporation, No. A-88581.

COUNSEL

Robert H. Holland, with him, Barbara L. Hollenbach, Holland, Taylor and Sorrentino, for petitioner.

Mark S. Refowich, Fishbone, Refowich & Scheer, for respondent, Joseph F. Turjak.

Judges Rogers and Barry, and Senior Judge Barbieri, sitting as a panel of three. Opinion by Judge Rogers.

Author: Rogers

[ 95 Pa. Commw. Page 331]

Bethlehem Steel Corporation (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), Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 1001.

Joseph F. Turjak (claimant) suffered a herniated disc, back sprain and strain, with involvement of connective tissue, on February 13, 1981, while using a jackhammer at work. The claimant received compensation for total disability from February 14, 1981 to November 18, 1981. He returned to work for the employer on November 19, 1981 at a light-duty job as a janitor. He received physical therapy at the employer's infirmary from November 19, 1981 until November 23, 1981.

On November 23, 1981, five days after returning to work as a janitor, the claimant felt a sharp pain in the back while emptying a trash receptacle. He was taken to the plant dispensary where he was treated by dispensary personnel. He signed the final receipt while at the dispensary.*fn1 He was unable to return to work after November 23, 1981.

Claimant consulted a chiropractor and was treated by him until June 1982. In May 1982, the claimant consulted Dr. David Eaton, a neurosurgeon. Dr. Eaton, together with Dr. Peter Kozicky, an orthopedic surgeon, performed a laminectomy, excision of a disc as well as a spinal fusion on the claimant.

[ 95 Pa. Commw. Page 332]

On September 10, 1982, the claimant filed a claim petition alleging total disability since November 19, 1981, as a result of his injury on February 13, 1981. At a pretrial hearing, the referee granted the claimant's motion to amend his pleading to constitute a petition to set aside the final receipt. On June 27, 1984, the referee granted the claimant's petition as of November 23, 1981 based upon the claimant's proof by sufficient competent evidence that all disability resulting from his work-related injury of February 13, 1981 had not ceased as of November 23, 1981, when he executed the final receipt. The Board entered an opinion and order affirming the referee.

On its appeal to this court, the employer contends that the claimant did not present medical evidence to establish that he was disabled at the time he signed the final receipt as required by Sheibley v. Workmen's Compensation Appeal Board (ARA Food Services Company), 86 Pa. Commonwealth Ct. 28, 483 A.2d 593 (1984).

In Sheibley we held that in order to set aside a final receipt under Section 434 of the Act, 77 P.S. § 1001, it is the claimant's burden to prove by "sufficient credible competent evidence" that all disability attributable to the injury had not, in fact, ceased when the final receipt was executed. We also held in Sheibley, as the ...


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