dissenting.
Reluctantly, I must agree that Hutter v. Workmen’s Compensation Appeal Board (Pittsburgh Aluminum Co.), 665 A.2d 554 (Pa.Cmwlth.1995) appears to compel the result reached by the majority here; however, because I believe that Hutter fails to comport with principles that have been well established under the Workers’ Compensation Act (Act),11 respectfully dissent.
As the majority points out, the procedural circumstances in Hutter are extremely similar to those currently before us. In Hutter, as here, the claimant appealed from an order of the Workers’ Compensation Appeal Board (Board) affirming a referee’s decision to terminate the claimant’s benefits based solely upon the claimant’s petition to set aside a final receipt. Further, in both cases, the claimant succeeded in the petition to set aside, and the employer had not filed a termination petition.2
*14In considering whether a termination could be granted under these circumstances, we noted in Hutter that, once a claimant succeeds on a petition to set aside,3 it is as if the final receipt was never signed, and the original compensation agreement automatically revives. We also recognized that, at that point, an employer wanting to alter the compensation under the original agreement must file a petition requesting specific relief and bear the burden of proving entitlement to the relief sought through its petition. Id. However, acknowledging that there are exceptions to this general rule, we described two types of cases in which a referee could properly terminate benefits even though the employer did not file a termination petition. In addition, we created a third category of such cases, approving termination in the absence of a petition under the procedural circumstances in Hutter.4 It is this third category of cases that I find offensive.
Indeed, I have no difficulty with the two other types of cases presented in Hutter. In the first of these categories, where the claimant filing a claim petition is granted benefits for a closed period, benefits are terminated only because the claimant has failed to meet his or her burden under the filed petition to prove entitlement to benefits beyond a date certain. In the second category, where the employer has filed a petition other than a formal termination petition but, in all respects, puts the claimant on notice that termination is sought, the claimant is fully aware that he or she faces a mislabeled “termination” petition; thus, termination is proper if the employer meets its burden under the petition to prove that all of the claimant’s disability has ceased. These cases are very different from the third category created in Hutter, sanctioning the termination of a claimant’s benefits even though the claimant was the only one to file a petition and succeeded.in satisfying his or her burden under that petition.
An examination of the chronology of events in this case reinforces my belief that termination is inappropriate under such circumstances. Here, Michael Frontini (Claimant) mistakenly signed a final receipt on February 4, 1994. On February 11, 1994, Christopher Morgan, M.D., Claimant’s treating physician, released Claimant to return to work, although he was not fully recovered. Claimant filed his set aside petition on April 4, 1994, and on May 6, 1994, Parks Moving and Storage (Employer) filed its answer, specifically denying that Claimant was not fully recovered and was not released to return to work by his examining physician. Claimant was first examined by Robert P. Mantica, M.D., Employer’s physician, on May 23,1994, and Dr. Mantica was deposed on March 9, 1995. Two significant problems emerge from these dates.
First, I note that, Claimant was released to work only after he signed the final receipt and, even when Dr. Morgan released Claim*15ant, it was with the understanding that Claimant had not made a full recovery from his work-related injury. Although section 434, as amended by the Act of December 5, 1974, P.L. 736, provides that a final receipt given by an employee is prima facie evidence of termination of the employer’s liability to pay compensation, the regulation pertaining to termination of liability by final receipt, 34 Pa.Code § 121.17(a) (emphasis added),5 provides:
If an injured employe has recovered from his injury so that he has regained his full earning power, and so that all disability due to the injury has terminated, a final receipt may be fully prepared for signature. The fact that the employe returns to similar work at his original or greater wage unaccompanied by a showing that all disability has terminated, is not a basis for a final receipt. However, it may be the basis for a suspension of compensation.
Here, before Claimant’s doctor had ever approved Claimant’s return to work, Employer prepared a final receipt for Claimant signifying that Claimant had fully recovered from his injuries and had been released to return to work. Further, Employer induced Claimant to sign this final receipt without explaining its significance and with the knowledge that Claimant, in fact, remained disabled. Previously, we have deemed such conduct to be fraudulent. See Crawford v. Workmen’s Compensation Appeal Board (Peugot Contracting), 134 Pa.Cmwlth. 89, 577 A.2d 966 (1990). The majority notes that, because Claimant’s benefits were terminated by the final receipt, no purpose would be served by requiring Employer to file a form pleading to terminate benefits; however, I believe that by excusing Employer from filing a properly supported termination petition under the circumstances here, we essentially reward Employer for what is tantamount to fraudulent behavior.
The majority also reasons that Claimant was not prejudiced by the grant of termination where Employer provided notice to Claimant in the answer to Claimant’s set aside petition that Employer intended to adduce expert and lay witness testimony to prove that Claimant was no longer disabled.6 However, to the extent that the majority would equate Employer’s filing of an answer to the set aside petition to the filing of a termination petition, I would point out that, at the time Employer filed its answer on May 6, 1994, Dr. Mantica had not yet examined Claimant. Thus, Employer did not possess any medical evidence that Claimant was fully recovered. Previously, we have held that an employer cannot reasonably contest liability before it has obtained the medical evidence to justify that contest. See Lewistown Hospital v. Workmen’s Compensation Appeal Board (Kuhns), 683 A.2d 702 (Pa.Cmwlth. 1996); Kuney v. Workmen’s Compensation Appeal Board (Continental Data Systems), 127 Pa.Cmwlth. 628, 562 A.2d 931 (1989), appeal denied, 527 Pa. 605, 589 A.2d 694 (1990); MacNeill v. Workmen’s Compensation Appeal Board (Denny’s, Inc.), 120 Pa. Cmwlth.320, 548 A.2d 680 (1988); Jones & Laughlin Steel Corp. v. Workmen’s Compensation Appeal Board (White), 92 Pa.Cmwlth. 318, 500 A.2d 494 (1985). Similarly, when Employer filed its answer to Claimant’s set aside petition, it had no reasonable basis to challenge Claimant’s disability. Unlike the majority, I do not believe that Employer, having improperly obtained the final receipt, should be able to rely on a post hoc medical examination “to show that the status quo existed—that is, that the termination of benefits which had been effectuated by [Claimant's signing of a final receipt was warranted by the evidence.” (Majority op. at 12.)
Employer here filed no petition and, thus, sought no relief at all; the only matter before the WCJ was Claimant’s petition to set *16aside a final receipt. Remarkably, after concluding that Claimant satisfied his burden of proof on that matter, thus reviving the original compensation agreement as if Claimant had never signed the final receipt, the WCJ used Claimant’s petition to set aside the final receipt to grant Employer a termination of Claimant’s benefits. In Boehm v. Workmen’s Compensation Appeal Board, 133 Pa. Cmwlth. 455, 576 A.2d 1163 (1990), we stressed that the grant of termination where an employer only requests modification circumvents the humanitarian objectives of the Act to benefit claimants. Certainly then, the grant of an unsolicited termination where an employer files no petition at all clearly is contrary to the Act’s intent.
■ Because there was no petition authorizing the WCJ to terminate Claimant’s benefits, and the circumstances do not otherwise warrant termination, I would reverse the Board’s order to the extent that it affirmed the termination of Claimant’s benefits as of May 23, 1994. In all other respects, I would affirm the Board.7
. Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1—1041.4.
. Actually, in Hutter, prior to the claimant’s signing of the final receipt, the employer had filed two petitions which it designated as "termination” petitions. However, neither of these petitions were viable termination petitions because neither alleged a proper basis for granting a termination petition, i.e., that the claimant had fully recovered from her injury. The first "termi*14nation” petition alleged that the claimant’s injury was not work-related and, thus, that petition was actually a petition for review. The second "termination” petition alleged that the claimant returned to work without a loss of earnings and, thus, the employer should have filed a modification petition requesting suspension. Hutter. Additionally, at the time these "termination” petitions were filed, the employer’s doctor had not yet examined the claimant and, thus, the employer had no medical evidence to support a termination of benefits. Id.
. Pursuant to section 434 of the Act, 77 P.S. § 1001, to set aside a final receipt a claimant must prove by sufficient, competent, credible evidence that all disability related to his or her work-related injury had not ceased at the time he or she signed the final receipt. Hutter.
. In Hutter, the claimant sustained a work-related injury on April 23, 1990, and began receiving disability benefits. On March 14, 1991, the employer filed a "termination” petition alleging that the claimant's injury was not work-related. Then, on March 18, 1991, the claimant returned to work in a light duty position, whereupon the employer filed a "termination” petition asserting that the claimant had returned to work without a loss in earning power. A few days later, on April 12, 1991, the claimant signed a final receipt. Soon after, she was forced to stop working and, on September 9, 1991, she filed a petition to set aside the final receipt, contending that she had not fully recovered when she signed the final receipt in April of 1991. The claimant Succeeded in her set aside petition based on the testimony of her treating physician; however, the referee and Board examined the total period and extent of the claimant's disability and terminated her benefits as of Februaty 27, 1992, the date that Employer’s doctor examined the claimant.
. This regulation also provides that, if termination or suspension cannot be accomplished as indicated in subsection (a), dealing with final receipt, or subsection (b), dealing with agreement between the employer and the employee, the employer shall file a petition for termination or suspension, as provided under section 413 of the Act, 77 P.S. § 772.
. In this way, the present case presents a situation which is even more problematic than that in Hutter in regard to notice. I find it noteworthy that in Hutter, unlike the present case, the employer did file "termination petitions,” albeit invalid ones, prior to the claimant’s signing of a final receipt.
. Due to my disposition of Claimant's first issue, I would have no need to consider Claimant’s other arguments.