Summary
In Pittsburgh Press Company v. Workmen's Compensation Appeal Board (Pecora), 82 Pa. Commw. 538, 475 A.2d 972 (1984), this Court agreed with the Board's statement that where the referee had made no finding that all disability had not in fact terminated on the date a final receipt was signed by the claimant, it was inappropriate for either the Board or this Court to affirm an award of total disability because that would entail the making of a finding of fact which neither the Board nor this Court is permitted to do.
Summary of this case from Bethlehem M.C. v. W.C.A.BOpinion
Argued March 12, 1984
May 25, 1984.
Workmen's compensation — Form of petition — Recurrence — Petition for reinstatement — Petition to set aside final receipt.
1. The form of a workmen's compensation petition is not controlling where the facts presented warrant relief, and a petition erroneously designated as one to set aside a final receipt may properly be treated as a petition for reinstatement of benefits when evidence supports a finding that the disabling condition has recurred. [540]
Argued March 12, 1984, before Judges ROGERS, PALLADINO and BARBIERI, sitting as a panel of three.
Appeal, No. 1035 C.D. 1982, from the Order of the Workmen's Compensation Appeal Board in case of Charles Pecora, Jr. v. Pittsburgh Press Company, No. A-81624.
Petition to the Department of Labor and Industry to set aside final receipt. Benefits reinstated. Employer appealed to the Workmen's Compensation Appeal Board. Reinstatement affirmed. Employer appealed to the Commonwealth Court of Pennsylvania. Held: Affirmed.
Raymond F. Keisling, Will and Keisling, for petitioners.
Edward H. Walter, Jubelirer, Pass Intrieri, P.C., for respondents.
Pittsburgh Press Company, employer, and its insurer, Vigilant Insurance Company (Petitioners), seek review here of an order of the Workmen's Compensation Appeal Board affirming a referee's decision reinstating workmen's compensation benefits to Charles Pecora, Jr., for total disability. We affirm.
Principally, on this appeal, Petitioners assert that the referee and the Board erred by approving the reinstatement of benefits on the basis of a recurrence of disability where the petition filed by the Claimant was a Petition to Set Aside Final Receipt; that as a proceeding to set aside the final receipt, there was insufficient proof that disability had not ceased at the time the final receipt was signed; and that, therefore, the final receipt remains as a bar to the relief sought by Claimant. In so urging, Petitioners seem unaware that the relief sought in the petition is for a recurrence and not for error as to disability at the time the receipt was signed. The prayer of the petition reads: "on or about July 31, 1978, the original injury reoccurred and I have been unable to work since that time." The referee, in turn, made the following finding of fact:
Although the claimant presented here and before the Board a contention that compensable disability existed at the time the final receipt was signed, we agree with the Board's statement, as follows:
We would note the Claimant also maintains the Referee should be affirmed on the basis there was evidence all disability had not in fact terminated on the date the Final Receipt was signed. This may well be true, however the Referee made no finding on this point and for either this Board or the Commonwealth Court to affirm on this basis would require that we make a Finding of Fact which we are not permitted to do.
11. Your Referee finds as a fact, after having reviewed the Claimant's testimony and the conflicting medical evidence of record, that Claimant had a recurrence of disability resulting from the injuries originally sustained at work on March 23, 1976, and that Claimant has been totally disabled from July 31, 1978, and is presently totally disabled, and your Referee chooses to accept the medical opinion of causation and disability expressed by Dr. ElAttrache, as fact.
The referee accordingly concluded that the prayer of the petition, albeit misnamed, should be granted.
The prayer granted, of course, was for reinstatement based on a recurrence under Section 413 of the Pennsylvania Workmen's Compensation Act (Act). Petitioner's characterization of this as error is misconceived. It was the referee's prerogative and duty to rule as he did, given his finding of recurred disability. It has long been the rule in workmen's compensation cases that the form of the petition filed is not controlling where the facts warrant relief, and that if a claimant is entitled to relief under any section of the Act, his petition will be considered as filed under that section. Cambria County Commissioners v. Workmen's Compensation Appeal Board (Bradley), 57 Pa. Commw. 409, 426 A.2d 249 (1981); Woodard v. Workmen's Compensation Appeal Board (Koppers Co.), 49 Pa. Commw. 558, 411 A.2d 890 (1980); Schneider v. Sears, Roebuck Co., 206 Pa. Super. 282, 213 A.2d 83 (1965); Gower v. Mackes, 184 Pa. Super. 41, 132 A.2d 880 (1957); Harrison v. Alden Park Manor Apartments, 160 Pa. Super. 388, 51 A.2d 418 (1947).
Act of June 2, 1915, P.L. 736, as amended, 77 P. S. § 772.
Accordingly, we will affirm.
ORDER
Now, May 25, 1984, the order of the Workmen's Compensation Appeal Board at No. A-81624 dated April 29, 1982, is affirmed.