Opinion
No. 640 C.D. 2013
01-28-2014
Yanal Baslan, Petitioner v. Workers' Compensation Appeal Board (Emtil), Respondent
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY SENIOR JUDGE COLINS
Yanal Baslan (Employer) petitions for review of an order of the Workers' Compensation Appeal Board (Board) that reversed the decision of a Workers' Compensation Judge (WCJ) denying the Petition to Review Compensation Benefits (Review Petition) brought by Hassan Emtil (Claimant). Finding no error, we affirm.
On July 1, 2008, Claimant, who worked as a construction laborer for Employer, suffered a work-related injury that resulted in the amputation of his right middle finger at the distal phalanx. (July 7, 2010 WCJ Decision Findings of Fact (F.F.) ¶¶1, 5, 6(A), 10.) Claimant filed a Claim Petition against Employer, and, on July 7, 2010, the WCJ issued a decision and order granting that petition. (Id. Conclusion of Law ¶2, Order.) Applying the schedule of compensation in Section 306(c) of the Workers' Compensation Act (the Act), the WCJ concluded that Claimant was entitled to fifteen weeks of compensation benefits in addition to a healing period of six weeks of benefits, plus interest. (July 7, 2010 WCJ Decision F.F. ¶10.)
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 513.
On July 10, 2011, Claimant filed the Review Petition at issue in this appeal. In the Review Petition, Claimant asserted that the WCJ erred in awarding Claimant only fifteen weeks of compensation benefits and that instead the Act provided for twenty weeks of benefits for loss of one-half of the middle finger. (Review Petition ¶17, Reproduced Record (R.R.) at 3a.) In a July 27, 2011 decision, the WCJ denied the Review Petition concluding that Claimant failed to file a timely appeal of the July 7, 2010 decision granting the Claim Petition and that Claimant was not permitted to collaterally attack that decision through the review process. (July 27, 2011 WCJ Decision F.F. ¶2, Order, R.R. at 15a.)
Claimant appealed to the Board, and, by a March 19, 2013 opinion and order, the Board reversed the WCJ's denial of the Review Petition and modified Claimant's award to reflect twenty weeks of benefits and a six-week healing period. (Mar. 19, 2013 Board Opinion at 6, R.R. at 27a.) Relying on this Court's decision of Drozd v. Workmen's Compensation Appeal Board (The Lion, Inc.), 485 A.2d 96 (Pa. Cmwlth. 1984), the Board concluded that a party may file a review petition to challenge a purely mechanical error in the application of the Act in a previous decision despite the fact that the party failed to timely appeal the initial decision. (Mar. 19, 2013 Board Opinion at 2-4, R.R. at 23a-25a.) The Board determined that, in the July 7, 2010 decision, the WCJ erroneously applied Section 306(c)(12) of the Act, which relates to the loss of the third finger, rather than Section 306(c)(11), which relates to the loss of the second finger, and Claimant was improperly awarded fifteen weeks of compensation when he was entitled to twenty weeks. (Id. at 3-4, R.R. at 24a-25a.) Because there was no dispute that Claimant's injury was to the middle (second) finger on his right hand, the Board held that the WCJ erred in denying the Review Petition and not allowing Claimant the remedy for review of a previous mechanical error as outlined in Drozd. (Id. at 4-5, R.R. at 25a-26a.)
On appeal to this Court, Employer does not dispute that Claimant suffered a work-related injury that resulted in a "right middle finger distal phalanx amputation," (July 7, 2010 WCJ Decision and Order F.F. ¶10), or that the WCJ erroneously applied the subsection of the schedule of compensation applicable to the loss of half of the third finger in the July 7, 2010 decision, instead of the subsection applicable to the loss of half of the second finger. Employer nevertheless argues that the WCJ properly denied the Review Petition because Claimant failed to pursue any of his three options available to challenge the WCJ's July 7, 2010 decision on the Claim Petition: (i) a motion brought to the WCJ for a correction or amendment of a decision which must be made within twenty days of the service of the notice of the decision, 34 Pa. Code § 131.112(a); (ii) an appeal to the Board within twenty days of the appealed decision under Section 423(a) of the Act, 77 P.S. § 853; or (iii) a nunc pro tunc appeal to the Board upon cause shown that the twenty-day period for an appeal should be extended. While Employer acknowledges that this Court has allowed the correction of mechanical errors in unappealed orders through a review petition under Section 413(a) of the Act, 77 P.S. § 771, Employer contends that his reliance on the finality of the WCJ's July 7, 2010 decision is superior to Claimant's right to seek review of the mechanical error in that decision. We disagree.
Our review is limited to determining whether there has been an error of law or violation of constitutional rights and whether the WCJ's necessary findings of fact are supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa. C.S. § 704; City of Pittsburgh v. Workers' Compensation Appeal Board (McFarren), 950 A.2d 358, 359 n.2 (Pa. Cmwlth. 2008). --------
Section 413(a) of the Act provides:
A workers' compensation judge may, at any time, review and modify or set aside a notice of compensation payable and an original or supplemental agreement or upon petition filed by either party with the department, or in the course of the proceedings under any petition pending before such workers' compensation judge, if it be proved that such notice of compensation payable or agreement was in any material respect incorrect.77 P.S. § 771 (emphasis added). In Drozd, we held that this provision authorizes a petition for modification of a WCJ order to correct an error in the mechanical application of the Act, even if brought outside of the time allotted for an appeal. 485 A.2d at 97-99; see also Joyce v. Workers' Compensation Appeal Board (Stylette Plastics, Inc.), 709 A.2d 1011, 1013-14 (Pa. Cmwlth. 1998); Johnson v. Workers' Compensation Appeal Board (Budd Co.), 693 A.2d 1015, 1017 (Pa. Cmwlth. 1997).
The facts in Drozd are nearly identical to those here. In Drozd, the claimant was awarded compensation for a total disability of $60 per week. 485 A.2d at 96. In fixing the amount of the award, the referee applied an obsolete version of Section 306(a), 77 P.S. § 511, the schedule of compensation for total disability; the correct version of Section 306(a) would have provided that the claimant would receive $86.14 of compensation per week. Id. at 97. The claimant did not appeal the award but instead four years later filed a petition for modification of the award invoking Section 413 of the Act. Drozd, 485 A.2d at 97. The referee denied the petition and the Board affirmed. Id. After reviewing earlier cases in which courts had corrected mechanical errors in the application of the Act after the time for appeal of a decision had lapsed, this Court stated:
[T]he case [here] does not concern the merits of the original award but the question of its satisfaction. The material part and base of the original award was that the claimant, Drozd, was totally disabled and was entitled to compensation. It follows that, as a matter of the mechanical application of the statutory schedules, he was entitled to receive $84.16 per week during total disability. That award was not satisfied by the payment of $60 per week. ...[T]here is authority for correcting the purely mechanical error made in this case; so that it was error on the part of the compensation authorities not to have modified the 1976 award and not to have awarded the difference between the amount the claimant has been paid and the amount to which he was entitled and not to have directed the payment to the claimant of the lawful amount in the future.Id. at 98-99. Similarly, in Johnson, we reversed a Board order that dismissed a petition under Section 413 to correct a typographical error in an order that listed the wrong year for the date for the reinstatement of the claimant's benefits, reaffirming the holding of Drozd that the Act permits the Board to fix typographical, clerical or mechanical errors "at any time" on a petition under Section 413. Johnson, 693 A.2d at 1017-18.
Employer argues that this Court's decision in Joyce, in which we affirmed a denial of a review petition as barred by collateral estoppel, limits the ability of a WCJ to modify a previous unappealed decision. In that case, the claimant contracted an occupational disease and received an award of total disability benefits. 709 A.2d at 1012. Following a return to work and suspension of her benefits, the claimant suffered a wrist injury for which she received an award of benefits that was later commuted to a lump-sum payment. Id. The claimant then suffered a relapse of the original work-related disease and filed a reinstatement petition. Id. The WCJ granted the reinstatement petition but also credited the lump-sum payment for the wrist injury against the award for the recurrence of the disease. Id. The claimant did not appeal but later filed a review petition challenging the credit, which was denied by the WCJ as a collateral attack on the reinstatement petition, a decision affirmed by the Board. Id. at 1012-13. On appeal to this Court, the claimant argued that her review petition should be granted because, like the claimant in Drozd, she was only challenging the satisfaction of the previous award and not its merits. Id. at 1013. We disagreed, distinguishing Drozd and stating that "the WCJ in this case did not make a mathematical or mechanical error in applying the Act, but instead she addressed a question of law that was unsettled at the time and not specifically addressed by the Act." Id. at 1014.
Here, by contrast, there is no question that the error raised by Claimant in the Review Petition was, like in Drozd, one of a mechanical application of the schedules of compensation of the Act. Section 306(c) provides, in relevant part:
For all disability resulting from permanent injuries of the following classes, the compensation shall be exclusively as follows:
...
(11) For the loss of a second finger, sixty-six and two-thirds per centum of wages during forty weeks.
(12) For the loss of a third finger, sixty-six and two-thirds per centum of wages during thirty weeks.77 P.S. § 513(11), (12), (16) (emphasis added). In the July 7, 2010 decision, the WCJ awarded Claimant fifteen weeks of benefits under Section 306(c)(12), relating to the loss of a third finger, and Section 306(c)(16), which provides that the award should be divided in half for the loss of one-half of a finger. (July 7, 2010 WCJ Decision F.F. ¶10.) As found in the July 7, 2010 decision, however, Claimant's work injury was the loss of one-half of his right middle (second) finger, not his third finger. (Id. ¶¶6(A), 10.) In granting Claimant's Review Petition, the Board recognized the WCJ's error in the initial decision of awarding benefits based on an injury to the third finger and modified the award to twenty weeks of benefits based on an application of the provision relating to the loss of a second finger, Section 306(c)(11).
...
(16) The loss of one-half of the thumb, or a finger, shall be compensated at the same rate as for the loss of a thumb or finger but for one-half of the period provided for the loss of a thumb or finger.
Employer further argues that in this case the finality of the WCJ's July 7, 2010 decision supersedes Claimant's ability to petition for a modification of the mechanical error in that decision. Employer's sole justification for this argument is that the Uninsured Employers Guaranty Fund (Fund) has asserted remedies against Employer in a separate proceeding. Employer does not specify the nature of the action brought by the Fund, and this separate litigation is not a matter before us in this appeal; even if it were properly before us, however, we would see no reason why an action brought by the Fund against an employer would preclude the correction of an error in the mechanical application of the Act. The Fund was created for the purpose of paying benefits due to claimants when their employers failed to carry workers' compensation insurance or to self-insure for workers' compensation liability as required by the Act. Section 1602(c) of the Act, added by the Act of November 9, 2006, P.L. 1362, 77 P.S. § 2702(c); Section 305 of the Act, as amended, 77 P.S. § 501. When the Fund provides compensation, it is required to exhaust all remedies available at law against the uninsured employer to collect the amount of voluntary payments or awards, including the reimbursement of costs, interests, penalties and fees. Section 1605(b) of the Act, added by the Act of November 9, 2006, P.L. 1362, 77 P.S. § 2705(b). While the Board's modification of the award will lead to Claimant receiving additional benefits, Claimant's right to compensation for his injury under the Act is independent of the issue of whether Employer maintained workers' compensation insurance at the time of Claimant's injury or whether Employer is able now to pay for the benefits due to Claimant. Furthermore, to allow Employer to escape his responsibility in providing the full compensation due to Claimant merely because he failed to carry workers' compensation insurance at the time of the injury would be contrary to the purpose of the Fund to provide full compensation to injured employees regardless of the insurance coverage of their employers.
Accordingly, as there is no dispute that Claimant's work-related injury resulted in the loss of one-half of the middle finger on his right hand and that the WCJ's July 7, 2010 award of fifteen weeks of benefits was the result of a purely mechanical error in the application of the Act, we conclude based on the rule established in Drozd that the Board properly reversed the WCJ's July 27, 2011 denial of Claimant's Review Petition and modified Claimant's award to reflect twenty weeks of benefits. The order of the Board is affirmed.
/s/_________
JAMES GARDNER COLINS, Senior Judge ORDER
AND NOW, this 28th day of January, 2014, the order of the Workers' Compensation Appeal Board in the above matter is affirmed.
/s/_________
JAMES GARDNER COLINS, Senior Judge