Summary
missing physicians report relied on by the referee and referred to by the Board
Summary of this case from Kistler v. W.C.A.B. et alOpinion
Argued April 8, 1976
May 14, 1976.
Workmen's compensation — Timeliness of appeal — Remand — Inaccuracy of record.
1. An appeal in a workmen's compensation case must be dismissed when the appeal to the Workmen's Compensation Appeal Board was not filed within twenty days after the decision of the referee was mailed to the parties. [612]
2. A reviewing court may properly remand a workmen's compensation case to the Workmen's Compensation Appeal Board when the record is alleged to be and appears to be inaccurate and incomplete. [612-13]
Judge KRAMER did not participate in this decision.
Argued April 8, 1976, before Judges KRAMER, WILKINSON, JR. and BLATT, sitting as a panel of three.
Appeal, No. 1715 C.D. 1975, from the Order of the Workmen's Compensation Appeal Board in case of Cleo V. Hill v. City of Philadelphia, No. A-67315.
Petition with Department of Labor and Industry for additional workmen's compensation benefits. Petition denied. Petitioner appealed to the Workmen's Compensation Appeal Board. Denial affirmed. Petitioner appealed to the Commonwealth Court of Pennsylvania. Held: Remanded. Petition for reargument filed and denied.
Bruce Fox, for appellant.
Tyler E. Wren, Assistant City Solicitor, with him James M. Penny, Jr., Assistant City Solicitor, Stephen Arinson, Chief Deputy City Solicitor, Sheldon L. Albert, City Solicitor, and James N. Diefenderfer, for appellees.
In the brief filed by the appellee in this Court, for the first time the question has been raised of the timeliness of the appeal from the referee's decision denying appellant compensation. In the present state of the record, it would appear that the referee's decision was mailed on May 11, 1973. The appeal to the Board appears to have been filed on July 9, 1973, well beyond the 20-day appeal period. If these dates are accurate, then this appeal must be dismissed. See Judge KRAMER'S opinion and cases collected in Dinges Transfer v. Workmen's Compensation Appeal Board, 15 Pa. Commw. 468, 326 A.2d 668 (1974).
By supplemental brief authorized to be filed, appellant raised the question of the accuracy of the record and asserts that, given an opportunity, the record's inaccuracy in this regard can be established. Under these circumstances and since the matter was not raised before the Board, we will remand the case to the Board for a determination of the accuracy of the record on timeliness of the appeal from the referee's decision.
This Court's confidence in this record is not enhanced by the fact that Dr. Stein's report was relied upon by the referee and referred to by the Board in its opinion but does not appear of record. Furthermore, as far as we can determine, appellant has not had an opportunity to cross-examine Dr. Stein. If the Board should determine that the record in its present state is inaccurate and should determine further that the appeal from the referee was timely filed, then further proceedings must be had to have Dr. Stein's report properly introduced into the record.
Accordingly, we enter the following
ORDER
NOW, May 14, 1976, this case is remanded to the Workmen's Compensation Appeal Board for determination of the timeliness of the appeal from the decision of the referee and, if the appeal is determined to have been timely filed, for further proceedings to have Dr. Stein's report properly introduced into the record.
Judge KRAMER did not participate in the decision in this case.