Appeal from the Order of the Workmen's Compensation Appeal Board in the case of Gerald D. Mann v. Coastal Tank Lines, No. A-86895.
James R. Schmitt, with him, Raymond F. Keisling, Will, Keisling, Ganassi & McCloskey, for petitioner.
J. Kerrington Lewis, Lewis and Stockey, for respondent, Gerald D. Mann.
Judge Craig, and Senior Judges Blatt and Kalish, sitting as a panel of three. Opinion by Judge Craig.
[ 96 Pa. Commw. Page 256]
Coastal Tank Lines, Inc. appeals from an order of the Workmen's Compensation Appeal Board which affirmed a referee's setting aside of the final receipt which Gerald D. Mann had signed, but reversed the referee's suspension of his benefits.
The claimant suffered a neck and shoulder injury on July 9, 1981 in the course of his employment as a tank truck driver. The employer voluntarily entered into a notice of compensation payable agreement with the claimant until the claimant returned to work on November 12, 1982, one day after he signed a final receipt. He worked two days in November and one day in December. After his second day at work in November, the claimant again suffered from physical symptoms of his disability. His doctor, Dr. Steven C. Miller, examined him on December 20, 1982, and advised him that he should not continue working as a tank truck driver because lifting heavy hoses exacerbated his symptoms. On January 24, 1983, the claimant filed a petition to set aside the final receipt.
The referee determined that the claimant had proved that all disability had not ceased at the time of the signing of the final receipt, and therefore he set aside that final receipt. Holshue v. Workmen's Compensation Appeal Board (Robideu Express), 84 Pa. Commonwealth Ct. 253, 479 A.2d 42 (1984).
The referee also found credible the employer's assertion that, except for the three days available in November and December, the claimant was on lay-off status due to lack of work. The board did not dispute that finding.
The employer argues that the referee acted properly in suspending benefits because the claimant had returned to his regular work. However, this court has held that, in actions to set aside a final receipt, a
[ 96 Pa. Commw. Page 257]
claimant's temporary return to work "does not necessarily mean that the claimant was free of disability . . . [and that] the referee's action in setting aside the final receipt necessarily imports that the original disability continued to exist. . . ." Adkins v. Workmen's Compensation Appeal Board (Emerald Mines Corp.), 78 Pa. Commonwealth Ct. 221, 226, 467 A.2d 114, 116 (1983). A claimant's temporary return to work is not, therefore, automatically dispositive of the reinstatement of benefits.
Because the referee accepted the employer's assertion that management had laid off the claimant immediately after he had signed the final receipt and returned to work, the referee determined that the claimant's loss of earnings was "unrelated to his injury and partial disability." The board reversed and stated that the record lacked evidence "to support ...