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DURALOY BLAW-KNOX v. WORKMEN'S COMPENSATION APPEAL BOARD (BORING) (03/18/86)

decided: March 18, 1986.

DURALOY BLAW-KNOX, INC., AND TRAVELERS INSURANCE COMPANY, PETITIONERS
v.
WORKMEN'S COMPENSATION APPEAL BOARD (BORING), RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in the case of Budd Boring v. Duraloy Blaw-Knox, Inc., No. A-87224.

COUNSEL

David A. Cicola, William K. Herrington & Associates, for petitioners.

John W. McTiernan, McArdle, Caroselli, Spagnolli & Beachler, for respondent, Budd Boring.

Judges Doyle and Palladino, and Senior Judge Barbieri, sitting as a panel of three. Opinion by Judge Doyle. Dissenting Opinion by Senior Judge Barbieri.

Author: Doyle

[ 96 Pa. Commw. Page 9]

This is an appeal by Duraloy Blaw-Knox, Inc. (Employer) and Travelers Insurance Company, Employer's insurer, from an order of the Workmen's Compensation Appeal Board (Board) affirming a referee's decision sustaining the petition to set aside the final receipt of Budd Boring (Claimant).

Claimant was employed by Employer as an assistant ladleman on December 26, 1975, on which date he suffered

[ 96 Pa. Commw. Page 10]

    a low back injury while in the scope of his employment.*fn1 Payments were made pursuant to a notice of compensation payable and a final receipt was executed on January 6, 1976. In a supplemental agreement dated December 7, 1978 the parties acknowledged a recurrence of total disability as of November 17, 1978. Claimant then returned to work on June 25, 1979 at which point he signed a final receipt acknowledging cessation of all disability as a result of the December, 1975 injury. Claimant worked until he was laid off on October 12, 1979. On October 26, 1981 Claimant filed a petition to set aside the June, 1979 final receipt. At the hearing Claimant testified that upon return to work in June, 1979 he continued to have low back pain and that his doctor had released him to do light duty work. Nonetheless, Claimant was assigned to a grinder's job, which job required him to lift a large grinding machine and manipulate steel plates weighing between 100 and 125 pounds. Claimant also presented the deposition testimony of Dr. Gerald I. Schor, who examined Claimant on February 11, 1982. Dr. Schor stated that Claimant suffered from a ligamentous injury of his low back related to the December 1975 injury and that the ligamentous injury disabled Claimant from performing the duties of assistant ladleman and grinder as of the date of his examination. The doctor did not testify that Claimant was suffering from a residual disability at the time Claimant signed the final receipt in June of 1979. The referee, finding that Claimant again became disabled on October 12, 1979, (the date Claimant was laid off) ruled in favor of Claimant and the Board affirmed.

[ 96 Pa. Commw. Page 11]

Preliminarily we must concern ourselves with the nature of the action here appealed. While Claimant in fact filed a petition for relief under Section 434 of The Pennsylvania Workmen's Compensation Act, Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 1001 (Act) (setting aside a final receipt) the petition itself uses language indicating that what he actually sought was compensation for a recurrence of the 1975 injury pursuant to Section 413 of the Act, 77 P.S. § 772. Moreover, Employer's answer to this petition states that Employer denies that Claimant's injury has "recurred." In addition, the referee made findings relating to recurrence of the earlier disability. Yet, his conclusion is that the final receipt should be set aside.

The determination of which remedy Claimant sought (to set aside the final receipt or to achieve reinstatement of benefits because of a recurrence of prior disability) is important because the elements to be proven are different. We said in Ferguson v. Workmen's Compensation Appeal Board, 55 Pa. Commonwealth Ct. 394, 396, 423 A.2d 63, 64 (1980):

Where a claimant seeks to set aside a final receipt, the burden is upon him to prove by clear and convincing evidence that all disability attributable to the original injury had not terminated when the final receipt was executed. . . . Moreover, where the claimant returns to work with no loss of earning power and no obvious residual disability, the clear and convincing evidence required of claimant must take the form of unequivocal medical testimony that the current

[ 96 Pa. Commw. Page 12]

    disability existed at the time the final receipt was signed. (Citations omitted.)

Although in Sheibley v. Workmen's Compensation Appeal Board (ARA Food Services Co.), 86 Pa. Commonwealth Ct. 28, 483 A.2d 593 (1984), we held that under an amendment to Section 434 the burden of proof in petitions to set aside final receipts is now sufficient credible competent medical evidence rather than clear and convincing evidence,*fn2 the other requirements of Ferguson still stand. Thus, a claimant must still demonstrate, albeit by a lesser degree of evidence, that his disability had not terminated when he signed the final receipt. Where the claimant has no loss of earning power and no obvious disability, unequivocal medical evidence is still needed. Ferguson. As noted earlier, Claimant's doctor never testified as to Claimant's medical condition on the date he signed the final receipt. Thus, under Ferguson, unless Claimant had both a loss of earning power and an obvious disability upon his return to work, he has not met his burden. Claimant himself testified that while he was to return to light duties, he in fact did not do so. He also testified that he worked continuously upon his return, that he did strenuous duties, and that he made no complaint of pain to Employer. Thus upon his return to work he had neither loss of earning power nor any obvious disability.

Employer in order to overcome the gaps in Claimant's evidence cites Robbins v. Workmen's Compensation Appeal Board (Donald Acor Trucking), 78 Pa. Commonwealth Ct. 144, 466 A.2d 1141 (1983), for the broad proposition that it is unnecessary to produce medical evidence that a claimant was disabled on the

[ 96 Pa. Commw. Page 13]

    exact date of the signing of a final receipt. A close reading of Robbins, where the receipt was signed on July 3, 1979, reveals that that case was vastly different from the instant one. In Robbins the claimant's doctor, who treated Robbins' foot injury, described Robbins' medical condition during the period from June 15, 1978 through May 5, 1980 by testifying that Robbins underwent surgery on April 9, 1979, that he was in a cast until June 11, 1979, and that he was required to use crutches until September 1979. While in Robbins the doctor did not specifically testify as to claimant's condition on the date he signed the final receipt, i.e., July 3, 1979, we said:

Of course it was not necessary to produce medical evidence that the claimant was disabled on the exact date, July 3, 1979, he signed the final receipt; this fact is subsumed in the testimony that he was disabled ...


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