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Cook v. W.C.A.B. et al

Commonwealth Court of Pennsylvania
Aug 3, 1979
404 A.2d 446 (Pa. Cmmw. Ct. 1979)

Opinion

Argued April 6, 1979

August 3, 1979.

Workmen's compensation — Petition for modification of award — The Pennsylvania Workmen's Compensation Act, Act 1915, June 2, P.L. 736 — Appeal procedure.

1. A petition to modify an award of a referee cannot be used as a device to challenge portions of the award when timely utilization was not made of appeal procedures provided by The Pennsylvania Workmen's Compensation Act, Act 1915, June 2, P.L. 736. [571-2]

Argued April 6, 1979, before Judges CRUMLISH, JR., ROGERS and CRAIG, sitting as a panel of three.

Appeal, No. 2607 C.D. 1978, from the Order of the Workmen's Compensation Appeal Board in case of John Cook v. Crown Cork Seal Co., Inc., No. A-75324.

Petition with the Department of Labor and Industry to modify workmen's compensation award. Petition dismissed. Petitioner appealed to the Workmen's Compensation Appeal Board. Dismissal affirmed. Petitioner appealed to the Commonwealth Court of Pennsylvania. Held: Affirmed.

Joseph S. Bekelja, with him Frank, Margolis, Edelstein Scherlis, for appellant.

Martin J. Fallon, Jr., with him Swartz, Campbell Detweiler, for appellees.


John Cook appeals an order of the Workmen's Compensation Appeal Board (WCAB) which affirmed a referee's dismissal of his petition for modification of an award.

Our review of the modification petition and record supports WCAB's conclusion that Cook's petition is an inappropriate vehicle for the relitigation of a prior, unappealed decision and order. Where, as here, Claimant raises substantive legal objections to the referee's finding of the length of disability, reasonableness of the contest, and computation of compensation and expenses, his proper recourse is to appeal the referee's decision to WCAB.

On September 7, 1977, Cook was awarded benefits for a seven-week period for a work-related disability. The referee also assessed medical expenses in the amount of $2,447.60, finding a reasonable basis for the employer's, Crown Cork and Seal Company's, contest of liability. He also awarded Cook's counsel a 20% fee, to be paid from Cook's award.

Crown Cork and Seal's appeal to WCAB was withdrawn. Alleging the same errors he now asserts in his petition for modification, Cook attempted to appeal nunc pro tune on November 1, 1977, 56 days after notification of the referee's decision. Cook's appeal was quashed as untimely because the twenty-day statutory period for appeals had expired. See Section 423 of The Pennsylvania Workmen's Compensation Act (Act), 77 P. S. § 853.

Act of June 2, 1915, P.L. 736, as amended, 77 P. S. § 853.

Although we have held that an agency may, on its own motion, correct typographical or clerical errors in its findings and orders, which are not in dispute; Cohen v. Workmen's Compensation Appeal Board, 33 Pa. Commw. 349, 381 A.2d 1330 (1978); Kentucky Fried Chicken of Altoona, Inc. v. Unemployment Compensation Board of Review, 10 Pa. Commw. 90, 309 A.2d 165 (1973), the substance of "petitions for modification" are examined to insure they are not in reality a ploy to circumvent the statutory procedures.

In Fox v. Workmen's Compensation Appeal Board, 33 Pa. Commw. 575, 382 A.2d 494 (1978), a claimant who had withdrawn his claim petition when his employer paid his medical bills attempted to revitalize his claim by filing a petition for modification. There we ruled that the petition to modify a non-extant award was in essence a claim petition and bound by the Act's filing requirement. Similarly, in Unger v. Jones and Laughlin Steel Corp., 12 Pa. Commw. 264, 315 A.2d 909 (1974), a petition for modification that was filed by a claimant who had signed a final receipt was held to be barred by the two-year statute of limitations for petitions to set aside final receipts.

In the disputed petition, Cook alleges the following errors by the referee: (1) he improperly calculated Cook's medical expenses by omitting $9.00 which Cook had paid to Albert Einstein Medical Center; (2) Cook's period of disability was not seven weeks, as the referee found, but nine weeks and one day; (3) the referee failed to include overtime pay when computing Cook's average weekly wages; (4) Cook did not have an opportunity to press his claim for attorney fees; and (5) the decision neglected to find Cook's incurred attorney fees.

We find that Cook is attempting to raise substantive legal objections to the referee's decision in his petition. We will not permit claimants to defeat the orderly appeal process provided by Section 423 by allowing petitions for modification to serve as substitutes for timely appeals.

Accordingly, we

ORDER

AND NOW, this 3rd day of August, 1979, the order of the Workmen's Compensation Appeal Board dated November 2, 1978, dismissing John Cook's petition for modification is affirmed.


Summaries of

Cook v. W.C.A.B. et al

Commonwealth Court of Pennsylvania
Aug 3, 1979
404 A.2d 446 (Pa. Cmmw. Ct. 1979)
Case details for

Cook v. W.C.A.B. et al

Case Details

Full title:John Cook, Petitioner v. Commonwealth of Pennsylvania, Workmen's…

Court:Commonwealth Court of Pennsylvania

Date published: Aug 3, 1979

Citations

404 A.2d 446 (Pa. Cmmw. Ct. 1979)
404 A.2d 446

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