Only where a "delay in taking action was caused by extraordinary circumstances involving fraud, a breakdown in the administrative process, or non-negligent circumstances related to the claimant, his counsel, or a third party[,]" may the deadline be extended. Dep't of Labor & Indus., Uninsured Emp'rs Guar. Fund v. Workers' Comp. Appeal Bd. (Gerretz, Reliable Wagon and Auto Body, Inc.), 142 A.3d 148, 155 (Pa. Cmwlth. 2016); see also City of Phila. v. Workers' Comp. Appeal Bd. (Operacz), 706 A.2d 1292 (Pa. Cmwlth. 1998); Tony Grande, Inc. v. Workmen's Comp. Appeal Bd. (Rodriguez), 455 A.2d 299 (Pa. Cmwlth. 1983). To timely appeal from the January 22, 2018 Decision, Claimant was required to file her Appeal with the Board no later than February 12, 2018.
Even though it sent a notice to Quinn, this failure to follow its own regulation and send notice to Licensee's counsel constitutes a breakdown in Board procedure warranting nunc pro tunc relief. 1 Pa. Code §31.26; 40 Pa. Code §17.4(d). See, e.g., City of Philadelphia v. Workers' Compensation Appeal Board (Operacz), 706 A.2d 1292, 1294-95 (Pa. Cmwlth. 1998) ("Even if the Employer had been properly served, ... [b]ecause 1 Pa. Code §31.26 applies, any notice of a decision must also be sent to any attorney who has entered an appearance in the proceeding. Because Employer's attorney entered an appearance on behalf of Employer before the date of the WCJ's decision and was not given notice of that decision, this lack of notice constituted a breakdown in the operation of the agency so as to require the grant of a nunc pro tunc appeal....") (footnote omitted).
Thus, Claimant urges, by failing to provide his counsel with the notice of ability to return to work, Employer fell short of its threshold burden to provide notice and therefore it could not have prevailed on the modification petition. See City of Phila. v. Workers' Comp. Appeal Bd. (Operacz), 706 A.2d 1292 (Pa. Cmwlth. 1998) (WCJ's failure to provide claimant's new counsel of record with a copy of the WCJ's decision after counsel entered appearance constituted a breakdown in the operation of the agency warranting the granting of nunc pro tunc appeal). Claimant also contends the WCJ erred in failing to find an unreasonable contest on the penalty and review petitions.
See Cook v. Unemployment Compensation Board of Review, 543 Pa. 381, 671 A.2d 1130 (1996). When an agency fails to serve a party with a copy of a hearing officer's proposed report, the party is permitted to file exceptions nunc pro tunc. Hartman v. State Board of Optometrical Examiners, 507 A.2d 878 (Pa.Commw. 1986) (failure to serve a copy of a proposed report violated petitioner's due process rights and the case was remanded to allow the filing of exceptions); see also City of Philadelphia v. Workers' Compensation Appeal Board (Operacz), 706 A.2d 1292 (Pa.Commw. 1998). Martin asserts that an administrative breakdown occurred because DOT knew that its counsel changed his address.