200 A. 169 | Pa. Super. Ct. | 1938
Argued April 18, 1938.
In this workmen's compensation case, appellant, State Workmen's Insurance Fund, concedes that there is competent evidence to support the findings and order of the Workmen's Compensation Board, and the testimony was not made part of the record. The only question involved is one of procedure, and is whether, under the circumstances related hereinafter, the order of the board, dated June 26, 1936, allowing claimant a rehearing, was in accordance with the Workmen's Compensation Act of June 2, 1915, P.L. 736 art. 4, § 426, as amended by the Act of June 26, 1919, *120
P.L. 642, § 6, and as further amended by the Act of April 13, 1927, P.L. 186, § 8 (
Claimant, while in the employ of the McCombie Coal Company, was injured on March 22, 1934. The parties entered into a compensation agreement under which claimant was to receive compensation at the rate of $10.14 per week beginning March 30, 1934, and continuing until his disability ceased or changed. A later agreement was entered into for the purpose of changing the average weekly wage, whereby claimant was paid thereafter at the rate of $11.15 per week. Compensation was paid under this later agreement from March 30, 1934, to June 19, 1934. On July 3, 1934, appellant, McCombie Coal Company's insurance carrier, filed a petition to terminate, averring that claimant had returned to work and refused to sign final receipt. On September 4, 1934, referee, after hearing, terminated payments of compensation under the agreement as of June 20, 1934. Notice of termination was mailed by the secretary of the Workmen's Compensation Board on September 18, 1934. No appeal was taken by claimant from this order of termination. On January 14, 1935, claimant filed a review petition, averring that on June 20, 1934, as of which date the referee terminated *121
the payment of compensation, he was unable to resume work, and was still unable, at the time of filing his review petition, to work. He further averred in this petition that he failed to appeal from the referee's order of termination within the statutory period because he was in the hospital at the time. To this petition appellant filed an answer, on February 8, 1935, setting forth the order of the referee terminating compensation as of June 20, 1934, and averring that there was no compensation agreement to be reviewed, or award in force at that time, and that claimant's relief, if any, should be by petition for rehearing. At the hearing before the referee, he concurred with the contention of appellant that claimant's relief was by petition for rehearing, and, in an order dated May 6, 1935, dismissed claimant's review petition. This order was mailed by the secretary of the Workmen's Compensation Board on May 8, 1935. No appeal was taken from this order, but on May 23, 1935, claimant filed a petition for rehearing with the board, setting forth that at the hearing on the petition to terminate he had no medical witnesses to testify for him, that he did not have the opportunity to present his side of the case, and that he was unable to work, and praying for rehearing for the purpose of presenting additional evidence with regard to his condition. On June 5, 1935, appellant, in answer to claimant's petition for rehearing, denied that claimant did not have the opportunity to present his side of the case, and objected to the granting of the prayer of his petition. On July 19, 1935, the Workmen's Compensation Board made the following order: "Now, June 18, 1935, the petition for rehearing in this case is denied without prejudice to claimant's right to timely file another petition supported by proper detailed affidavits." On May 4, 1936, claimant filed another petition, properly supported by affidavits, praying for a rehearing. In this he again alleged that he was unable to work *122
and was totally disabled as a result of the injuries sustained on March 22, 1934. On May 14, 1936, appellant filed an answer to this petition, averring that it was not filed within one year from the referee's order of termination, mailed September 18, 1934, in accordance with section 426 of the Workmen's Compensation Act of 1915, as amended (
Appellant contends that claimant's petition of May 4, 1936, cannot be viewed as seeking a rehearing of his petition for review, dismissed by the board's order of May 6, 1935, and mailed to the parties on May 8, 1935, or of his petition for rehearing, which was the subject of the board's order of June 18, 1935, mailed to the parties on July 19, 1935, but that the present petition must be considered as requesting a rehearing of the referee's order of termination dated September 4, 1934, and mailed to the parties on September 18, 1934. See *123 Manley v. Lycoming Motors Corporation, Etc.,
Appellant relies heavily upon McGuire v. Dougherty Jenningset al.,
In actions at law it is the well settled and general rule that an amendment that does not change the cause of action may be made even though the statute of limitations has run. See Standard Pennsylvania Practice, Vol. 2, § 146, p. 191, and cases there cited. See discussion and review of the authorities in Severancev. Heyl *124 Patterson, Inc.,
Claimant should receive the same consideration as one who has been permitted, after the statute of limitations has run, to amend or amplify a petition filed in time. "The filing of the petition within the year tolls the running of the statutory limitation just as the filing of an original claim petition within the year protects the claimant. Vitkovic v. PennsylvaniaClay Co.,
In Vitkovic v. Pennsylvania Clay Co.,
"The time limit in which claims might be filed was placed in the act not only to produce a uniform practice, but to enable employers to know the period of time they could be called upon to respond for just claims, so that they might not be constantly expecting stale claims of doubtful merit. . . . . . . It was not intended to cut out meritorious claims by harsh rulings as to the manner of filing": Horn v. Lehigh Valley Railroad Co.,
In our opinion, the board's order of June 18, 1935, must be considered as granting leave to claimant to amend his original petition for rehearing filed May 23, 1935, and "if the amendment merely expanded or amplified what was alleged in support of the cause of action already asserted, it related back to the commencement of the action, and was not affected by the intervening lapse of time. [Cases cited.]": Seaboard Air LineRailway v. Renn,
Order of the court below is affirmed.