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LABHSHANKER S. DAVE v. WORKMEN'S COMPENSATION APPEAL BOARD (RAYBESTOS MANHATTAN (05/15/86)

decided: May 15, 1986.

LABHSHANKER S. DAVE, PETITIONER
v.
WORKMEN'S COMPENSATION APPEAL BOARD (RAYBESTOS MANHATTAN, INC.), RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board, in case of Labhshanker S. Dave v. Raybestos Manhattan, Inc., No. A-85931.

COUNSEL

Labhshanker S. Dave, petitioner, for himself.

Thomas F. McDevitt, Thomas F. McDevitt, P.C., for respondents.

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

Author: Palladino

[ 97 Pa. Commw. Page 266]

Labhshanker S. Dave (Claimant) appeals from an order of the Workmen's Compensation Appeal Board (Board) which affirmed the referee's decision setting aside a final receipt and suspending benefits, but amended the referee's order by reinstating the compensation to allow partial disability payments.

The referee made the following findings of fact. On December 15, 1975, Claimant sustained a low back injury while employed by Raybestos Manhattan, Inc.

[ 97 Pa. Commw. Page 267]

(Employer). As a result of the injury, Claimant received total disability benefits from the date of the injury until September 9, 1979. Claimant returned to work for Employer in a light duty capacity on September 10, 1979. Claimant signed a final receipt on September 18, 1979. Claimant worked until October 12, 1979, at which time he was laid off due to economic conditions at the plant. On August 17, 1981, Claimant was recalled to work. Claimant again worked until he was laid off on April 9, 1982, and has not worked since.

Claimant petitioned to set aside the final receipt based on the medical reports of Dr. Daniel Good. The reports stated that Claimant's injury had resulted in partial disability which had not changed in severity since January 1979. The referee set aside the final receipt finding that Claimant's injury still existed at the time he signed the final receipt. The referee, however, found that employment was available to Claimant from November 1, 1979 to August 16, 1981, and after April 9, 1982 and, therefore, suspended his benefits as of September 10, 1979. The Board affirmed the order in part but amended the award to grant Claimant total disability benefits from October 13, 1979 to November 1, 1979 and partial disability benefits from November 1, 1979 to August 16, 1981. The Board suspended benefits from August 17, 1981 to April 8, 1982 and awarded partial disability benefits thereafter. Claimant appeals from the Board's order.*fn1

[ 97 Pa. Commw. Page 268]

When petitioning to set aside a final receipt, Claimant must prove by sufficient credible competent evidence that all disability had not terminated at the time he signed the final receipt. Sheibley v. Workmen's Compensation Appeal Board (ARA Food Services Co.), 86 Pa. Commonwealth Ct. 28, 483 A.2d 593 (1984). Here, Dr. Good's report provides substantial evidence to support the referee's finding that Claimant's injury had not terminated at the time he signed the final receipt.

Because Claimant carried his burden of proof, the original compensation agreement between Claimant and Employer is automatically revived. Altemose Co. (Sheraton) v. Workmen's Compensation Appeal Board, 60 Pa. Commonwealth Ct. 511, 516, 432 A.2d 267, 270 (1981). "The issue then becomes the extent of the Claimant's disability, and the burden of showing that such has been reduced from that payable under the compensation agreement is upon the [Employer]. . ." Maciupa v. Union Switch and Signal, 13 Pa. Commonwealth Ct. 126, 129-30, 317 A.2d 901, 903 (1974). The ...


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