Appeal from the Order of the Workmen's Compensation Appeal Board, in case of Donald R. Pollock v. Westinghouse Electric Company, No. A-87179.
Arthur A. Asti, Jr., David H. Trushel & Associates, for petitioner.
Joel Persky, Henderson & Goldberg, P.C., for respondent, Donald R. Pollock.
Judges Colins and Palladino, and Senior Judge Kalish, sitting as a panel of three. Opinion by Judge Colins. Judge Palladino dissents.
[ 96 Pa. Commw. Page 438]
Westinghouse Electric Corporation (employer) appeals an order of the Workmen's Compensation Appeal Board (Board) which affirmed a referee's decision setting aside the final receipt executed by Donald R. Pollock (claimant) and awarding him workmen's compensation benefits. We must determine whether the referee capriciously disregarded competent evidence by excluding from the record surveillance films of the claimant's activities allegedly taken by the employer.
The claimant suffered a compensable injury to his lower back on April 7, 1981, while working as an assembler for the employer. As an assembler, the claimant was required to lift parts weighing as much as 150 pounds and to wrestle weights up to 1500 pounds. His injury required two laminectomies and an extensive recuperation, during which time, the claimant received compensation for total disability pursuant to a Notice of Compensation Payable. On March 18, 1983, the claimant signed a final receipt*fn1 terminating the employer's liability. He did not return to work. Rather, on the same date, the claimant filed a petition to reinstate compensation in which he averred that he remained disabled.*fn2 The claimant's Petition for Reinstatement was later amended to a Petition to Set Aside a Final Receipt.
At hearings before the referee, the claimant testified that, as of the date he signed the final receipt, he continued to experience pain in his back and was undergoing treatment. The claimant also offered the deposition testimony of his treating physician, the orthopedic surgeon who had performed his back surgeries. This
[ 96 Pa. Commw. Page 439]
physician opined that the claimant suffered acute residual strain from the surgeries, was subject to lifting restrictions of approximately twenty-five pounds and remained unable to perform his pre-injury position. This physician examined the claimant on June 13, 1983 and then reaffirmed his evaluation of the claimant's total disability.
The employer proferred the deposition testimony of two medical witnesses who had examined the claimant, reviewed his medical history, and observed surveillance films allegedly taken of the claimant on March 5, 1983, some two weeks prior to his execution of the final receipt. These witnesses opined that the claimant was capable of returning to his pre-injury position with the employer.
The referee refused to admit these surveillance films into evidence. In lieu of the films, the referee did admit seven photographs of the claimant, purportedly printed from frames of the surveillance films. The employer further presented the testimony of the private investigator who had filmed the claimant's activities. This investigator testified that he observed the claimant performing repair work on several automobiles; at one point, he observed the claimant lift and carry the cap of a pickup truck with the assistance of several other individuals. The claimant's medical witness had not reviewed these films.
To support a Petition to Set Aside a Final Receipt, a claimant must demonstrate by sufficient credible and competent evidence that all disability due to the injury has not, in fact, terminated when he signed the final receipt. Sheibley v. Workmen's Compensation Appeal Board ...