Opinion
Argued December 4, 1979
February 25, 1980.
Workmen's compensation — Final receipt — Termination of disability — The Pennsylvania Workmen's Compensation Act, Act 1915, June 2, P.L. 736 — Specific loss benefits — Issues not properly presented.
1. Under The Pennsylvania Workmen's Compensation Act, Act 1915, June 2, P.L. 736, a final receipt is properly set aside upon a showing that all disability had not terminated, but in setting aside a receipt upon such a showing it is improper to reinstate a notice calling for the payment of total disability benefits when the claimant seeking to set aside the final receipt sought only payment of specific loss benefits, and the employer was thus not provided an opportunity to present evidence as to the present extent of the disability of the claimant. [441]
Argued December 4, 1979, before Judges WILKINSON, JR., ROGERS and BLATT, sitting as a panel of three.
Appeal, No. 448 C.D. 1978, from the Order of the Workmen's Compensation Appeal Board in case of Ralph H. Logan v. Commissioners of Beaver County, No. A-75746.
Petition with the Department of Labor and Industry to set aside final receipt and for specific loss benefits. Final receipt set aside. Notice providing for payment of total disability benefits reinstated. Employer appealed to the Workmen's Compensation Appeal Board. Order affirmed. Employer appealed to the Commonwealth Court of Pennsylvania. Held: Reversed and remanded. Application for reargument filed and denied.
Fred C. Trenor, of Meyer, Darragh, Buckler, Bebenek Eck, for petitioners.
Leonard P. Kane, Jr., for respondents.
The Commissioners of Beaver County (employer) appeal here from an order of the Workmen's Compensation Appeal Board (Board) which affirmed a referee's decision setting aside a final receipt executed by Ralph H. Logan (claimant) and awarding him compensation for total disability.
The claimant injured his left leg on April 17, 1964, in a job-related accident and received compensation for total disability under a notice of compensation payable executed by the employer. On December 15, 1975, he returned to work and executed a final receipt. He continued to have problems with his leg, however, and on February 22, 1977, he filed the instant petition to set aside final receipt, alleging a specific loss of the "left lower extremity". A hearing was held before a referee, who later issued a decision expressly denying the specific loss claim but finding total disability and reinstating the original notice of compensation payable. The Board upheld the referee, and this appeal followed.
The employer argues here, as it did below, that the only issue before the referee was the specific loss claim and that he erred therefore in ruling on an issue which had not been presented, i.e., total disability.
Section 434 of The Pennsylvania Workmen's Compensation Act, Act of June 2, 1915, P.L. 736, as amended, 77 P. S. § 1001, provides in part:
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.
To have a final receipt set aside, therefore, a claimant need only demonstrate that all disability has not terminated. Schneider v. Sears, Roebuck and Co., 206 Pa. Super. 282, 213 A.2d 83 (1965).
If the claimant does carry his burden and succeeds in having the final receipt set aside, the effect is to revive the compensation agreement automatically and to restore the parties to the position they would have been in if the receipt had never been signed. 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 defendant.
Maciupa v. Union Switch Signal, 13 Pa. Commw. 126, 129-30, 317 A.2d 901, 903 (1974). See Workmen's Compensation Appeal Board v. Westinghouse Electric Corp., 21 Pa. Commw. 171, 343 A.2d 718 (1975).
In the case here before us, the evidence and findings clearly demonstrate that all of the claimant's disability has not ceased. We find no error, therefore, in the referee's setting aside the final receipt. We do believe, however, that the referee erred in reinstating the notice of compensation payable for total disability because this issue was not properly presented. Cf. Workmen's Compensation Appeal Board v. Dill Construction Co., 20 Pa. Commw. 145, 341 A.2d 537 (1975); Workmen's Compensation Appeal Board v. Westinghouse Electric Corp., 24 Pa. Commw. 251, 355 A.2d 619 (1976). Inasmuch as the claimant was asserting only a specific loss, the employer's case was directed to that issue, and the employer did not have an opportunity to show that the claimant's disability has been reduced from the total disability payable under the original agreement.
We must therefore remand this matter to allow the employer to present its case as to the present extent of the claimant's disability, including such related matters as his medical limitations and his job prospects.
ORDER
AND NOW, this 25th day of February, 1980, the order of the Workmen's Compensation Appeal Board in the above-captioned matter is reversed, and the matter is remanded to the Board for disposition not inconsistent with our opinion herein.
This decision was reached prior to the death of President Judge BOWMAN.
Judge DiSALLE did not participate in the decision in this case.