Appeal, No. 1570 C.D. 1978 | Pa. Commw. Ct. | Sep 12, 1979
Opinion by
On March 18, 1976, the employer-appellee in this case filed a petition to review a previous award of compensation by a referee, dated April 2,1975,
The above Award against the Defendant-Company only shall bear interest on all deferred payments of compensation at the rate of ten percentnm per annum.
The interest provision of the award was never appealed, but the employer, much later, has now filed a petition under Section 413 of The Pennsylvania Workmen’s Compensation Act (Act),
The same referee then concluded that the petition filed by the employer could not be considered a petition for review or modification under Section 413 of the Act and dismissed it. However, he also concluded as a matter of law that, under Section 406.1 of the Act,
The employer appealed to the Workmen’s Compensation Appeal Board (Board) of the Department, of Labor and Industry (Department). The Board reversed and assessed interest on each party in proportion to the respective shares of the compensation they owed. The Commonwealth appealed to this court.
We reverse.
£[W]here no change in claimant’s condition is proved there can be no change in an earlier award and ... a modification . . . proceeding cannot be used to relitigate the percentage of disability determined in the original award.’ ... Absent the requirement of showing a change in disability, a disgruntled employer (or claimant) could repeatedly attack what he considers an erroneous decision by a referee by filing petitions for modification based on the same evidence ad infinitum, in the hope that one referee would finally decide in his favor. The proper, and only, method of attacking an erroneous decision of a referee is by an appeal to the Board and subsequently to this Court.
15 Pa. Commw. 373" court="Pa. Commw. Ct." date_filed="1974-10-24" href="https://app.midpage.ai/document/banks-v-workmens-compensation-appeal-board-6361960?utm_source=webapp" opinion_id="6361960">15 Pa. Commonwealth Ct. 373, 377, 327 A.2d 404, 406 (1974).
However, here the employer was not trying to re-litigate the substance of the disability award, but candidly attempting to obtain a clarification of an award which, at best, failed to specify with clarity how the interest payments were to be made. Nevertheless, the employer chose an improper procedural vehicle.
But the matter requires resolution. In line with the liberal construction of the Act and a policy of avoiding fruitless technicalities, previous cases have been liberal in construing petitions for review or modification under Section 413 as properly cognizable as petitions under some other appropriate sec
In this case, the department could have raised this issue sua sponte under Section 435(b) of the Act,
If it appears that there has not been compliance with this act . . . the department may, on its own motion give notice to any. persons in- . volved in such apparent non-compliance and schedule a hearing for the purpose of determining whether there has been compliance. The notice of hearing shall contain a statement of the matter to be considered,
Section 406.1 of the Act mandates that “interest shall accrue on all due and unpaid compensation at the rate of ten percentum per annum.” (Emphasis added.)
The petition filed in this case clearly stated that claimant’s counsel had made demands for interest owing on 75% of the compensation award. In light of the mandate of Section 406.1 of the Act, the petition made it apparent to the Board that there existed a question of some failure to comply, with the Act.
Thus, when the referee and then the Board passed on this latest interest issue, with adequate opportunity for all parties concerned to be heard, the department in effect was doing what it could have done on its own motion under Section 435(b).
In so doing, we hold that the referee, in considering the substance of the petition, committed no error of law in assessing interest on the entire award against the employer under our recent decision in Mathies Coal Co. v. Workmen’s Compensation Appeal Board, 40 Pa. Commw. 120" court="Pa. Commw. Ct." date_filed="1979-01-23" href="https://app.midpage.ai/document/mathies-coal-co-v-commonwealth-6364902?utm_source=webapp" opinion_id="6364902">40 Pa. Commonwealth Ct. 120, 399 A.2d 790 (1979), where we found no violation of the employer’s constitutional rights by the assessment of such interest under Section 406.1 of the Act. We said:
The Commonwealth’s assumption of some part of the compensation due Claimants is a gratuity. Pekorofsky v. Glen Alden Coal Co., 171 Pa. Super. 97" court="Pa. Super. Ct." date_filed="1952-07-17" href="https://app.midpage.ai/document/pekorofsky-v-glen-alden-coal-co-1443577?utm_source=webapp" opinion_id="1443577">171 Pa. Super. 97, 89 A.2d 890 (1952). The employer’s obligation, however, arises from its responsibility to the employee by virtue of the hazards to which the employee has been exposed while employed in the employer’s enterprise. Weyant v. General Refractories Co., 150 Pa. Super. 502" court="Pa. Super. Ct." date_filed="1942-10-26" href="https://app.midpage.ai/document/weyant-v-general-refractories-co-3862749?utm_source=webapp" opinion_id="3862749">150 Pa. Super. 502, 29 A.2d 100 (1942). Therefore, we conclude that there is sufficient justification for the different treatment accorded the . . . [employers] as opposed to the Commonwealth.
Mathies Coal Co. v. Workmen’s Compensation Appeal Board, 40 Pa. Commonwealth Ct. at 128, 399 A.2d at 794.
Therefore, we reverse and remand to the Workmen’s Compensation Appeal Board with directions
Order
And Now, this 12th day of September, 1979, the order of the Workmen’s Compensation Appeal Board dated June 15, 1978, at A-73581 is vacated and the case remanded to the Board with directions to correct the award of January 10, 1975, S.S. No. 169-03-7012 in this same matter to provide specifically that interest on the entire amount of the aforesaid award shall bear interest on all deferred payments of compensation at the rate of ten percentum per annum, such interest to be paid entirely by the defendant-company.
The Commonwealth appealed, tbe decision to the Workmen’s Compensation Appeal Board raising only the question of the referee’s finding of disability. The Board affirmed per curiam.
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §772.
Added by Section 3 of the Act of February 8, 1972, P.L. 25, as amended, 77 P.S. §717.1.
Added by Section 3 of the Act of February 8, 1972; P.L. 25, 77 P.S. §991 (b). .