With respect to lunch-time activities on an employer's premises, Professor Larson has stated: E.g., Royall v. Industrial Commission, 106 Ariz. 346, 476 P.2d 156 (1970) (making telephone call); Lizama v. Workmen's Compensation Appeals Board, 40 Cal.App.3d 363, 115 Cal.Rptr. 267 (1974) (constructing bench for personal comfort to be used on premises); Divelbiss v. Industrial Commission, 140 Colo. 452, 344 P.2d 1084 (1959) (showering in employer's facilities); Chicago Extruded Metals v. Industrial Commission, 77 Ill.2d 81, 32 Ill.Dec. 339, 395 N.E.2d 569 (1979) (showering in employer's facilities); Hill v. Terrazzo Machine Supply Co., 279 Minn. 428, 157 N.W.2d 374 (1968) (mailing a card on employer's premises); Crotty v. Driver Harris Co., 49 N.J. Super. 60, 139 A.2d 126 (1958) (getting fresh air); Strohmeyer v. B.S. W. Builders, Inc., 33 A.D.2d 1070, 307 N.Y.S.2d 525 (1970) (making telephone call); Richey v. Commander Mills, Inc., Okla., 521 P.2d 805 (1974) (going to drink dispenser); Babcock Wilcox Construction Co., Inc. v. St. John, 48 Pa. Commw. 1, 408 A.2d 915 (1979) (using the restroom).See note 1, supra; 1A A. Larson, The Law of Workmen's Compensation § 21.00 et seq. (1982).
As this Court has held: [T]here is "cause shown" for the Board to grant a rehearing when there has been ineffective counsel, Bickel v. Workmen's Compensation Appeal Board (Williamsport Sanitary Authority and Hartford Insurance Group), [538 A.2d 661 (Pa. Cmwlth. 1988)]; where the Board has misapplied the law in light of a subsequent court decision, Babcock and Wilcox Construction Co., Inc. v. St. John, [408 A.2d 915 (Pa. Cmwlth. 1979)]; and when a party has not been given an opportunity to present a case or when newly discovered evidence can be produced, General Woodcraft and Foundry v. Workmen's Compensation Appeal Board (Besco), [318 A.2d 385 (Pa. Cmwlth. 1974)].Chadwick v. Workmen's Compensation Appeal Board (Benjamin Franklin Hotel), 573 A.2d 652, 654-55 (Pa. Cmwlth.), appeal denied, 589 A.2d 694 (Pa. 1990). Claimant asserts that she has shown cause for a grant of a rehearing because her counsel failed to submit into evidence Dr. Prawak's reports of her prior treatment, as well as documentation related to working conditions and peer-reviewed literature on cumulative trauma injury, which would have corroborated Claimant's testimony regarding her injuries.
This Court has determined that the Board did not abuse its discretion in granting rehearing where a party has been denied an opportunity to present his or her case, General Woodcraft Foundry v. Workmen's Compensation Appeal Board, 13 Pa. Commw. 357, 318 A.2d 385 (1974); or to "correct a mistake of law or its misapprehension of an issue." Babcock Wilcox Constr. Co. Inc. v. St. John, 48 Pa. Commw. 1, 4, 408 A.2d 915, 916 (1979). Further, the Bureau is authorized to substitute one referee for another in a workers' compensation proceeding pursuant to Section 415 of the Act, 77 P. S. § 851.
Cudo v.Hallstead Foundry, Inc., 517 Pa. 553, 539 A.2d 792 (1988). We have previously held that there is "cause shown" for the Board to grant a rehearing when there has been ineffective counsel, Bickel v. Workmen's Compensation Appeal Board (Williamsport Sanitary Authority and Hartford Insurance Group), 114 Pa. Commw. 333, 538 A.2d 661 (1988); where the Board has misapplied the law in light of a subsequent court decision, Babcock and Wilcox Construction Co., Inc. v. St. John, 48 Pa. Commw. 1, 408 A.2d 915 (1979); and when a party has not been given an opportunity to present a case or when newly discovered evidence can be produced, General Woodcraft and Foundry v. Workmen's Compensation Appeal Board (Besco), 13 Pa. Commw. 357, 318 A.2d 385 (1974). Here, none of the evidence which Employer attached to his petition for rehearing qualifies as after-discovered evidence.
Cudo v. Hallstead Foundry, Inc., 517 Pa. 553, 539 A.2d 792, 794 (1988). We have previously held that there is "cause shown" for the Board to grant a rehearing when there has been ineffective counsel, Bickel v. Workmen's Compensation Appeal Board (Williamsport Sanitary Authority and Hartford Insurance Group), 114 Pa. Commw. 333, 538 A.2d 661 (1988); where the Board has misapplied the law in light of a subsequent court decision, Babcock and Wilcox Construction Co., Inc. v. St. John, 48 Pa. Commw. 1, 408 A.2d 915 (1979); and when a party has not been given an opportunity to present a case or when newly discovered evidence can be produced, General Woodcraft and Foundry v. Workmen's Compensation Appeal Board (Besco), 13 Pa. Commw. 357, 318 A.2d 385 (1974). Even with the broad powers the Board has to order rehearings, the reason advanced by the Employer does not even meet the most lenient standard in determining if "cause shown" has been met.
The principal purpose for the rehearing was to reconsider the legal conclusions drawn from the evidence. Such a purpose is not an abuse of discretion. Babcock Wilcox Construction Co. v. St. John, 48 Pa. Commw. 1, 408 A.2d 915 (1979). Alternatively, Gilberton attacks, as unsupported by substantial competent evidence, the referee's finding of a causal connection between the anthracosilicosis and the death.
We have recognized that the purpose of granting a rehearing is to allow a party to present newly discovered, non-cumulative evidence. Babcock Wilcox Construction Co. v. St. John, 48 Pa. Commw. 1, 408 A.2d 915 (1979). Here, the Board's decision to grant the employer's petition to terminate was based on the September 26, 1980 testimony of the employer's medical expert, Dr. Joseph Sgarlet, who stated that his examination of the claimant's back condition disclosed an absence of objective symptoms and that it was his opinion that the claimant had sprained his back, had fully recovered, and would be able to resume his former duties as a deliveryman without limitation.
We disagree. The decision to grant or deny a rehearing is within the Board's discretion and will only be reversed for an abuse of that discretion. Babcock Wilcox Construction Co. v. St. John, ___ Pa. Commonwealth Ct. ___, 408 A.2d 915 (1979). A rehearing is generally granted to allow a party to present newly discovered, noncumulative evidence or to allow the Board to correct a mistake of law or its misapprehension of an issue.