13 Pa. Commw. 375 | Pa. Commw. Ct. | 1974
Opinion by
Daniel Amorose (claimant) suffered a compensable accident on October 30, 1969, while in the course of his
On appeals to this Court in workmen’s compensation cases, where the referee has found in favor of the party carrying the burden of proof (here, the claimant) and the Board has heard no additional evidence, our scope of review is limited to a determination of whether or not constitutional rights were violated, an error of law was committed or any necessary findings of fact, as found by the referee, were unsupported by substantial evidence. Leipziger v. Workmen’s Compensation Appeal Board and Guida, 12 Pa. Commonwealth Ct. 417, 315 A. 2d 883 (1974).
In an action to set aside a final receipt pursuant to Section 434 of the Workmen’s Compensation Act, 77 P.S. §1001, the burden is upon the claimant to prove conclusively that all disability due to the accident has in fact not terminated. Here the claimant did present substantial competent evidence to carry that burden and to support the referee’s findings of fact to that effect. Such evidence includes the claimant’s testimony that, at least since February of 1971, he had recurring pain in his back and his legs and a numbness in his foot and that he had been unable to work since he was laid off
Cyclops argues that the referee and the Board capriciously disregarded its medical evidence to the effect that the claimant was at most 40% disabled. The test here, however, is one of substantial evidence and not one of capricious disregard, and it was the duty of the referee to determine which competent medical evidence to accept. He determined that issue in favor of the claimant’s medical witnesses. Hoy v. Fran Lingerie and Workmen’s Compensation Appeal Board, 9 Pa. Commonwealth Ct. 542, 308 A. 2d 640 (1973).
Cyclops also argues that it had work available to which the claimant could have returned subsequent to his being laid off on May 7, 1971. Cyclops, however, introduced no evidence that any work available was work which the claimant could have performed, considering the medical evidence as to his physical condition.
Lastly, Cyclops contends that, during one of the hearings, the referee refused to accept an offer of evidence which would allegedly have shown that Cyclops was entitled to be subrogated to any award granted to the claimant because it had paid the claimant supplemental unemployment compensation benefits for a period of time during which he had not been worMng. Unfortunately, however, there is nothing in the record to indicate that such an offer was ever made. Because
For the above reasons, therefore, we issue the folloAving
Order
Noav, June 6, 1974, the order of the Board is affirmed and judgment is entered in favor of Daniel Amorose and against Universal Cyclops and/or Pennsylvania Manufacturers Association Insurance Company, insurance carrier, and the final receipt is set aside, Compensation Agreement No. 191-01-6510, dated November 25, 1969, is hereby reinstated and compensation at the rate of $60.00 per week shall be payable February 1, 1971 through April 25, 1971, suspended for the period April 26, 1971 through May 7, 1971, and again payable recommencing May 8, 1971 and continuing indefinitely thereafter until changed pursuant to the provisions of the Workmen’s Compensation Act, Avith legal interest on all deferred payments.