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PATRICIA M. EICHOLTZ v. WORKMEN'S COMPENSATION APPEAL BOARD (FLINCHBAUGH PRODUCTS (09/11/87)

decided: September 11, 1987.

PATRICIA M. EICHOLTZ, PETITIONER
v.
WORKMEN'S COMPENSATION APPEAL BOARD (FLINCHBAUGH PRODUCTS, INC.), RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in case of Patricia M. Eicholtz v. Flinchbaugh Products, Inc., No. A-89052.

COUNSEL

William H. Poole, Jr., McCullough & Poole, for petitioner.

Douglas B. Marcello, Mancke, Lightman & Wagner, for respondent.

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

Author: Barbieri

[ 109 Pa. Commw. Page 283]

Patricia M. Eicholtz, Claimant in this workmen's compensation case, appeals here an order of the Workmen's Compensation Appeal Board (Board), affirming

[ 109 Pa. Commw. Page 284]

    the dismissal by a referee of Claimant's Petitions to Set Aside a Final Receipt and to Reinstate Compensation Payments.

Pursuant to a Notice of Compensation Payable, compensation payments were begun for an injury suffered by Claimant on April 20, 1979, resulting in a "herniated lumbar disc L5-S1 LT." On or about August 24, 1979, a Final Receipt was executed by Claimant which recited that compensation had been paid to her for the injury of April 20, 1979 and that she was able to return to work on August 20, 1979. Subsequently, on or about February 15, 1980, Claimant filed her Petition to Set Aside Final Receipt, averring therein that "I have not recovered from my injuries, I need further medical attention, I am unable to follow my employment." This petition was disposed of by Referee Krasno on August 6, 1981, but pursuant to the terms of an agreement reached between counsel that payment would be made of compensation for seventy-two weeks a total sum of $9,691.20, at Claimant's rate of $134.60, provided that Claimant agreed to have the referee render a decision based on findings of fact proposed by defense counsel under which the pending petition to set aside Final Receipt would be dismissed by the referee. A side letter from insurer's counsel to Claimant's then current counsel, memorializing this settlement and agreement, dated July 7, 1981, required also Claimant's agreement that the sum being paid, $9,691.20, would serve as a credit "against any future additional claim for compensation benefits which may be filed by your client." The letter further provided that the insurer would defray the cost of a laminectomy if performed prior to July 1, 1982 and would make provisions to insure that the medical bills for such a procedure would be paid by Employer's insurer, Home Insurance Company, "once it is substantiated that the laminectomy is related to the October 20,

[ 109 Pa. Commw. Page 2851979]

injury," but the letter contains no agreement to resume weekly benefit payments during disability caused by such surgery.

The final paragraph in the insurer's letter of July 7, 1981, signed by Claimant and dated July 17, 1981, reads: "I have had the contents of this letter read to me by my attorney, Raymond Smith, Esquire, and agree to what the letter says." Appellant's Brief and R.R. 9a.

Examination of Referee Krasno's decision of August 6, 1981, reveals that Claimant was the only witness called. While we have not been supplied with a copy of the proposed findings of fact referred to in the letter of July 7, 1981, the resulting order of Referee Krasno reads:

Order

AND NOW, this 6th day of August, 1981, Claimant's Petition to Set Aside Final Receipt No. 185-28-1918, herein filed, is dismissed for failure to produce competent medical testimony.

The proceedings in this case are hereby closed.

On or about April 17, 1984, Claimant filed the two petitions involved on this appeal. The Petition to Set Aside Final Receipt,*fn1 contained the following:

I, PATRICIA M. EICHOLTZ hereby petition to set aside the Final Receipt under which compensation in the above case was terminated on July 9, 1981. As reason for this petition, I allege the following facts: At the time I signed Final Receipt, I was not aware that I was signing a Final Receipt and also my disbility had not ceased.

R.R. 11b.

[ 109 Pa. Commw. Page 286]

Defendant's answer to this petition contains ...


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