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AETNA ELECTROPLATING COMPANY v. WORKMEN'S COMPENSATION APPEAL BOARD (STEEN) (05/10/88)

decided: May 10, 1988.

AETNA ELECTROPLATING COMPANY, PETITIONER
v.
WORKMEN'S COMPENSATION APPEAL BOARD (STEEN), RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board, in the case of John Steen v. Aetna Electroplating Company, No. A-91587.

COUNSEL

Joseph S. Bekelja, with him, Sandra R. Craig, Margolis, Edelstein, Scherlis, Sarowitz and Kraemer, for petitioner.

Brian R. Steiner, Steiner & Segal, and Lee M. Herman, for respondent, John Steen.

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

Author: Barbieri

[ 116 Pa. Commw. Page 67]

Before this Court in this workmen's compensation case is the appeal of Aetna Electroplating Co., Employer, seeking our review of an order of the Workmen's Compensation Appeal Board (Board) which sustained a decision of a referee reinstating total disability benefits in favor of John Steen, Claimant. We will affirm.

The referee's uncontested findings are that Claimant was originally injured on June 13, 1980 while in the employ of Employer as Chief of Quality Control when a tank containing cyanide, hydrogen, peroxide and water, overheated and exploded causing Claimant to sustain severe burns of the arms, face, hands, chest and eyes. Compensation was instituted by Notice of Compensation Payable and Claimant returned to work for Employer at modified duties. On returning to work, Claimant was tendered a final check and Final Receipt. In contest are the date of Claimant's return to work, the date when the last payment of compensation took place, as to which his Employer interposes as a defense the limitation in Section 434 of The Pennsylvania Workmen's

[ 116 Pa. Commw. Page 68]

Compensation Act (Act).*fn1 The referee's relevant findings are as follows:

3. Claimant returned to work on or about August 28, 1980 at light and modified job duties, after meeting with his Plant Supervisor, Personnel Director and Company President. Claimant received his last payment of compensation when he signed a Final Receipt which was dated August 21, 1980. Claimant cashed his last payment on September 4, 1980.

4. At the time Claimant signed the Final Receipt, he continued to suffer pain and tremors of both hands, limitation of movement of the hands and continued to see his doctor, Steven Marc Kiel, M.D., all as a result of his job injury.

5. After signing the Final Receipt, Claimant continued to require medication two times daily, and received treatment from Steven Marc Kiel, M.D. every two (2) to three (3) months.

6. Claimant has testified that he continues to have pain in and about both arms, associated with constant burning and stinging sensations with tremors in both arms and hands.

7. While Claimant did return to work, he was unable to perform all his pre-injury duties as Quality Control Chief. Claimant could not take inventory, or check plant equipment because it was too heavy to move, calibrate the thickness of various metals, place metals into and remove them from baking ovens, or clearly write instructions regarding plating of metals, due to tremors. Claimant was able to perform all these duties prior to the June 13, 1980, explosion.

[ 116 Pa. Commw. Page 698]

. Claimant was laid-off on or about May 15, 1981 because he was unable to perform all the duties of Chief of Quality Control, due to the effects of his original work related injury.

Other findings by the referee indicate that he accepted the testimony offered by the Claimant, both lay and medical, and rejected such testimony offered by the Employer. His findings on disability are the following:

12. Claimant has come under the treatment of Steve Marc Kiel, M.D. and Charles Hartford, M.D. Dr. Kiel, a board certified neurologist, psychiatrist, has testified that Claimant was in good health until the 1980 explosion. Since that time, neurologically, he has developed tremors involving both hands, exacerbated by activity such as writing and moving his hands, especially on the right dominant side. That Claimant has pain and a burning sensation at the burn site. Dr. Kiel was of the opinion that Claimant suffers from pain in the arms caused by the burns and its effect on superficial nerves, coupled with essential tremors caused by the work injury of June 13, 1980.

14. The Referee is persuaded by the testimony and opinions of Claimant's treatment physician, Dr. Steven Marc Kiel; and is not persuaded by the testimony of Dr. Piacents [sic] whose opinions are not credible nor worthy of belief.

We note that although the petition in the instant case was on the form of a reinstatement petition in which it is asserted that the cessation of benefit payments was by way of a suspension, the compensation authorities throughout have treated the petition quite properly as one to set aside a Final Receipt. We note in passing, however, that in light of Claimant's persisting disability at the time of his return to work and the fact that he did not return to his full and regular duties, a

[ 116 Pa. Commw. Page 70]

    suspension would have been a more proper basis for discontinuing compensation payments.

In any event, Section 434 provides a presumption in favor of the cessation of payments. This Section provides: "A final receipt, given by an employe or dependent entitled to compensation under a compensation agreement notice or award, shall be prima facie evidence of the termination of the employer's liability to pay compensation under such agreement, notice or award . . ." (emphasis added).

The prima facie evidence presumption may be rebutted, of course, where it is later shown that all disability had not in fact ceased. This portion of Section 434 reads:

Provided, however, That a referee designated by the department may, at any time within three years from the date to which payments have been made, set aside a final receipt, upon petition filed with the department, or on the department's own motion, if it be shown that all disability due to the injury in fact had not terminated.

Employer seeks review of the action of the compensation authorities in setting aside the Final Receipt on three grounds: (1) it was an error of law for the referee and Board to conclude that Claimant's petition was filed within the three-year period provided in Section 434;*fn2 (2) the referee's finding that all disability due to the injury of June 13, 1980 had not terminated at the time Claimant signed the Final Receipt is not supported by the evidence; and (3) the referee's finding that Claimant's continuing disability was caused by the injury of June 13, 1980 is not supported by substantial evidence.

[ 116 Pa. Commw. Page 71]

As noted by the referee, the Final Receipt is dated August 21, 1980 and there is substantial evidence to support the referee's determination that Claimant returned to work on August 28, 1980, at light and modified job duties and that the last payment in the form of a draft was cashed or paid on September 4, 1980.

It seems too obvious for argument that under the provision in Section 434 that the three-year limitation does not begin to run until the last payment has been made, filing being permitted "at any time within three years from the date to which payments have been made. . . ." (Emphasis added.) Payment is not made simply by execution and delivery of a draft which may or may not be honored by the draftee bank. Accordingly, we have held that "it is the date of the last payment that begins the running of the limitations period within which to file a petition, not the date of the receipt." Hartung v. Workmen's Compensation Appeal Board (Pittsburgh), 49 Pa. Commonwealth Ct. 240, 242, 410 A.2d 1301, 1302 (1980), relying upon our decision in Pliscott v. Workmen's Compensation Appeal Board (Drumble), 9 Pa. Commonwealth Ct. 292, 305 A.2d 918 (1973). Employer argues against accepting these long standing authorities on the basis of dicta in a footnote in the case of Urick Foundry Co. v. Workmen's Compensation Appeal Board (Aarnio), 91 Pa. Commonwealth Ct. 24, 496 A.2d 883 (1985), a case in which we could not reach the merits because the appeal was interlocutory. The footnote, however, would not be applicable here, since it is concerned with a negotiable form of instrument, a check, whereas here payment was not made by check but was made by draft, payable solely on presentation. On the back of the draft the following rubber stamp statements appear:

[ 116 Pa. Commw. Page ...


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