36 A.2d 828 | Pa. Super. Ct. | 1944
Argued March 6, 1944.
This appeal requires us to straighten out a procedural entanglement which resulted primarily from the failure of the Workmen's Compensation Board to appreciate the separate and distinct functions performed by petitions filed under §§ 413, 423, 425 and 426 of the Workmen's Compensation Law1 and, secondarily, because it ignored or overlooked our frequent pronouncements to the effect that, in the spirit of liberality in the administration *620
of this branch of the law, the substance of a petition should prevail and the label given to it be disregarded. Gleyze v. HaleCoal Co.,
On a petition for termination filed by the employer, the referee made an award of compensation for partial disability under § 306(b).2 The employer appealed to the board on the ground the evidence was insufficient to sustain the award. While the case was pending and before any decision by the board, the employer filed a "Petition for Rehearing," in which it was alleged that, shortly after the award of the referee, claimant obtained employment in which he received wages in excess of those received prior to the accident,3 and that his claim of disability and resulting loss of earning power had not been made in good faith.
The board affirmed the referee's findings, conclusions and award; it dismissed the petition for rehearing in a single sentence as follows: "Insofar as all of the facts alleged in the petition pertain to matters subsequent to the award of thereferee, it is our opinion that the proper procedure for the defendant would be to file a petition for termination of the payments to the claimant, and not a petition for a rehearing." (Italics added.)
The employer thereupon appealed to the common pleas and filed a second "Petition for Rehearing" with the board in which it reasserted the facts set forth in the original petition and pleaded that "should the award be affirmed by the court, [defendant] will be obliged to pay compensation for nearly the entire year of 1942 under facts and circumstances when no compensation *621 was payable, because any petition to terminate filed hereafter would be confined to changes after the award," i.e. the award by the board. The board again refused the petition for the same reason stated in its original opinion and for the additional reason that the employer had failed to comply with its Rule No. 5, which requires that petitions for rehearing be supplemented by detailed affidavits supporting the material allegations.
The court of common pleas reversed and made an order returning the case to the board "for further determination of the facts as to what the claimant has received and the amount that would be due him after his loss of earning power is thus established, and consideration of the evidence as bearing upon the actual loss of earning power." Claimant appealed.
In reality, the employer, by its first petition, filed while the case was pending on appeal before the board, sought to invoke the board's power to either (a) hear other evidence under § 423,4 or (b) grant a hearing de novo under § 425.5 The allegation of after-discovered evidence (that claimant had, subsequent to the referee's award, obtained employment in which the wages he received exceeded his wages prior to the accident) which *622 was not available to it and could not have been discovered prior to the hearings before the referee, would have justified the board in hearing the evidence itself under § 423; the allegation that the claim of disability was made in bad faith amounts to an allegation of fraud and brought it within the scope of § 425. The board's action in dismissing the first petition was not based on an alleged violation of Rule No. 5, or any other rule of the board, and, in our opinion, it should have been treated as though filed under these sections and promptly granted. The evidence to support the employer's allegations could easily have been heard at a short hearing which would have involved little or no delay in the ultimate decision of the case. And when a tribunal has its attention called, prior to its adjudication, to an alteration of facts which, if disregarded, would lead it into error, the interests of justice require it to avoid the error, not stubbornly to commit it, and relegate the injured party to some procedure designed to correct the error after it is made.
If the board were correct in holding that the appropriate remedy was a petition for termination under § 4136 on the ground that it alleged a change of circumstances "subsequent to the award of the referee," it should have treated it as such and disregarded the form. Gleyze v. Hale Coal Co., supra. The important parts of any petition are the allegations of fact, which were ample to enable the board to grant appropriate relief.
But, in our opinion, a petition under the second paragraph *623
of § 413 was never, at any stage of the present case, an appropriate procedure. So long as the case was pending before the workmen's compensation authorities, the appropriate petition for leave to take additional testimony was either under § 423 or § 425. Where there has been an appeal to the board there is no award, within the meaning of the term as used in § 413 and § 426,7 until the board takes final action. The referee is merely the agent of the board. Jordan v. Merchants Meat Co.,
We are unwilling to dispose of this case and to adjudicate the rights of these parties on the basis of the technical violation of Rule No. 5. It is now too late to file a new petition for rehearing under § 426 and the employer would be compelled to pay large sums of money in compensation for which it may not be liable. Both petitions were verified by affidavit. The second petition was in substantially the same form as the first and perhaps the employer was justified in assuming that, since there had been no objection to the first by either the claimant or the board, its form was acceptable. And, although Rule No. 5 clearly enough requires the affidavits of witnesses, the board has adopted no rule of procedure specifying the penalty for failure of compliance. Of course, the board has a right to enforce its rules. But its order of dismissal, particularly in the absence of a rule expressly permitting it, was, in the present case, too severe a penalty; it should have required and allowed the employer to amend. *625
Since we are affirming the order of the lower court, it is not necessary to discuss the motion to quash the appeal.
The order of the court below is affirmed, with leave to the board, if it so desires, to make an appropriate order requiring the employer to amend its second petition for rehearing so as to comply with Rule No. 5.