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CHILDREN'S HOSPITAL PHILADELPHIA v. WORKMEN'S COMPENSATION APPEAL BOARD (WASHINGTON) (09/23/88)

decided: September 23, 1988.

CHILDREN'S HOSPITAL OF PHILADELPHIA, PETITIONER
v.
WORKMEN'S COMPENSATION APPEAL BOARD (WASHINGTON), RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board, in the case of Anita Washington, Claimant v. Children's Hospital of Philadelphia, No. A-92806.

COUNSEL

Stephen Ledva, Jr., Thompson and Pennell, for petitioner.

Larry Pitt, for respondent.

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

Author: Palladino

[ 120 Pa. Commw. Page 2]

Children's Hospital of Philadelphia (Employer) petitions for review of a decision of the Workmen's Compensation Appeal Board (Board) affirming a referee's grant of Anita Washington's (Claimant) petition to set aside a final receipt pursuant to section 434 of The Pennsylvania Workmen's Compensation Act (Act), Act of June 2, 1915, P.L. 736, as amended, 77 P.S. ยง 1001.

Claimant suffered a work related injury on May 23, 1984 when she slipped and fell at work. Claimant suffered injuries to her left knee, right leg, left hip and lower back. Claimant received benefits until June 18, 1984, at which time she returned to her pre-injury employment as a general service worker; Claimant signed a final receipt on November 1, 1984. On June 4, 1985,

[ 120 Pa. Commw. Page 3]

Claimant left her employment because recurring and worsening pain in her left knee and lower back rendered her unable to continue working.

On September 18, 1985, Claimant filed a petition to set aside the final receipt, alleging that she had not recovered from the injury of May 23, 1984 when she signed the final receipt and that her disability recurred on June 4, 1985, rendering her totally disabled. Claimant presented her own testimony and the deposition testimony of her treating physician, Raymond Silk, M.D. The referee, finding Claimant a credible witness and Dr. Silk a more credible and convincing witness than Employer's medical witness, granted Claimant's petition and reinstated benefits; the Board affirmed. Employer has appealed to this court.*fn1 Although Employer raises several issues in its Statement of Questions,*fn2 it has briefed only two issues. We shall address only the issues briefed; they are as follows: 1) whether there is unequivocal medical testimony to support the referee's finding that all disability had not terminated at the time the final receipt was signed and 2) whether there is unequivocal medical testimony to support the referee's finding of recurrence. Employer asserts that

[ 120 Pa. Commw. Page 4]

    neither finding is supported by unequivocal medical testimony and therefore neither finding is supported by substantial evidence. For the reasons which follow, we affirm.

In a petition to set aside a final receipt, the claimant bears the burden of proving by sufficient credible evidence that all disability attributable to the injury had not, in fact, terminated at the time the final receipt was signed. Sheibley v. Workmen's Compensation Appeal Board (ARA Food Services Company), 86 Pa. Commonwealth Ct. 28, 483 A.2d 593 (1984). Because Claimant here had resumed work with no loss of earning power and no obvious residual disability, unequivocal medical testimony was necessary to establish continuing disability entitling Claimant to have the final receipt set aside. Mellor v. Workmen's Compensation Appeal Board (Wilson Tires, Inc.), 102 Pa. Commonwealth Ct. 504, 518 A.2d 1308 (1986). However, here, as in Mellor, the referee, the Board and Claimant all seem to have assumed that proving a recurrence was sufficient to meet Claimant's burden, even though she never filed a reinstatement petition. As we noted in Mellor, if relief is justified by the evidence, then it ...


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