38 Pa. Commw. 280 | Pa. Commw. Ct. | 1978
Opinion by
This is a petition for review filed by the Commonwealth of Pennsylvania, Department of Labor and Industry (Department), from the decision of the Workmen’s Compensation Appeal Board (Board), dated August 11, 1977. The Board affirmed the referee’s determination dismissing what the referee termed as the Department’s “complaint,” but which the record shows was a “Notice of Hearing,” against the Home Insurance Company (Home).
The Notice of Hearing, dated September 27, 1976, and received by Home on September 28, 1976, notified Home that a hearing had been scheduled for October 22,1976, for the purpose of considering whether Home failed to comply with Sections 401.1, 406.1 and 413, The Pennsylvania Workmen’s Compensation Act (Act), Act of June 2; 1915, P.L. 736, as amended, 77 P.S. §§710, 717.1 and 774, and “rule 121.17 promulgated pursuant thereto,” (34 Pa. Code §121.17), in ter
We perceive that the narrow issue of law to be determined by the petition now before us is whether the time requirements set forth in Section 121.27(d) of regulations adopted by the Department on April 25, 1975, are binding upon the Department when it undertakes proceedings against an employer for alleged non-compliance with Sections 401.1 406.1 and 413 of the Act. We hold that they are.
Section 401.1 is not relevant to our disposition of the issue. Section 406.1 simply provides, inter alia, that payments of compensation may not be terminated without compliance with Section 413. Section 413 provides, inter alia, that if an employer terminates compensation payments without an agreement, a final receipt or the filing of a petition, the employer “shall be subject to penalty as provided in Section 435.” Subsection (a) of Section 435 authorizes the Department to establish and promulgate rules and regula
Section 435 caused this. Court some concern in Crangi Distributing Co. v. Workmen’s Compensation Appeal Board, 17 Pa. Commonwealth Ct. 530, 333 A.2d 207 (1975). The Court observed:
[Subsection (b) is] not entirely coherent. Subsection (b) provides plainly enough that the department may on its own motion after notice determine whether there has been compliance with the Act or rules and regulations of the department promulgated thereunder. It fails, however, to suggest what the department may or should do if it determines that there has been a violation of the Act or its rules and regulations. . . .
Id. at 534, 333 A.2d at 209.
The case was decided March 5, 1975. As we have noted, the Department adopted Regulation 121.27 on April 25,1975. It seems fair to assume that the regulation was adopted to satisfy the Court’s questions raised in the Crangi case.
It is only Subsections (c) and (d) of the regulation with which we need concern ourselves in the matter now before us. They provide as follows:
(c) Notice of violation and order. "Whenever the Bureau of Occupational Injury and Disease Compensation of the Department of Labor and Industry has information upon which*284 it believes that a ‘pre-petition termination of compensation’ due to an employe or to the employe’s family has taken place, in violation of section 413(b) of the act (77 P.S. §774.1), the Bureau shall serve upon the insurer an Order to Show Cause why the insurer should not be found in violation of section 413(b) of the act (77 P.S. §774.1). The Order shall set forth the particulars of the alleged violation. A copy of the Order shall be sent to the employe or employe’s family.
(d) Contents order. The Order to Show Cause shall set forth a date, time and place for a hearing for the purpose of determining whether the violation as alleged has occurred, and such hearing shall be convened no sooner than ten nor later than 20 days after receipt of the notification by the insurer. The notice shall be served on the insurer by certified mail, return receipt requested, or by personal service. The Order to Show Cause shall be considered an Order under 1 Pa. Code §35.14 (relating to orders to show cause).
It seems plain to us that in the instant case the Department has alleged that the employer has not complied with Section 413. The regulation speaks directly to a violation of Section 413 where a pre-petition termination of compensation has occurred, as alleged here. The Department argues that somehow the rule obviates the substantive provisions of Section 435 and is therefore illegal or in the alternative that the regulation and the provisions of Section 435 are mutually exclusive. We disagree. It seems clear to us that the regulation sets forth the procedure to be followed when the substantive provisions of Section 413 and 435 are to be enforced. Therefore, the regulation is a valid exercise of the statutory rule-making
We have held that duly authorized and promulgated regulations of an administrative agency have the force of law and are binding on the agency and others. Newport Homes, Inc. v. Kassab, 17 Pa. Commonwealth Ct. 317, 332 A.2d 568 (1975).
Since, in the instant case, the Department did not hold a hearing within twenty (20) days after receipt of notification thereof by the insurer as required by the Department’s own regulation, we must affirm the Board.
Order
And Now, this 24th day of October, 1978, the order of the Workmen’s Compensation Appeal Board, dated August 11, 1977, is affirmed.
While the record in this case is sketchy, it appears that Ruth Moskal was injured while at work in September or October of 1971, and that Home terminated compensation payments to her on November 1, 1973, based upon a report of a physician stating she was released for work as of that date. However, Home did not file a petition to terminate until July 30, 1974.
