Opinion
April 23, 1936.
July 10, 1936.
Workmen's compensation — Practice — Rehearing — Time — Neglect of board — Appeal from order granting rehearing.
1. An order of the Workmen's Compensation Board granting a rehearing of a claimant's petition for compensation is interlocutory and an appeal does not lie from such an order.
2. In a workmen's compensation case, it was held on appeal that an order of the Board granting a rehearing was within its discretionary power, where it appeared that, although the Board had not acted on the petition for the rehearing until almost four years after it had affirmed the Referee's order disallowing compensation and that no notice of the filing of the petition was served on the defendant by the secretary of the Board, these circumstances were not due to any fault of claimant but to oversight or neglect of the Board, and that claimant had filed his petition for a rehearing less than two months after the original action of the Board.
3. In such case, claimant's rights under the petition for rehearing, which was filed in time but overlooked by the Board, could not be affected by the discharge of subsequent proceedings on his behalf on the erroneous assumption that no petition for a rehearing had been filed within the time limited by statute, and that the matter had therefore been finally adjudicated and determined adversely to claimant.
Appeal, No. 37, April T., 1936, by defendant, from order of C.P. Allegheny Co., Oct. T., 1934, No. 3187, in case of Constantino M. Giana v. Byllesby Engineering and Management Company.
Before KELLER, P.J., CUNNINGHAM, BALDRIGE, STADTFELD, PARKER, JAMES and RHODES, JJ. Order affirmed.
Appeal from order of Workmen's Compensation Board granting a rehearing.
The facts are stated in the opinion of the Superior Court.
Appeal dismissed, before E.W. MARSHALL, McNAUGHER and SMITH, JJ. Defendant appealed.
Error assigned, among others, was action of lower court in dismissing exceptions to order of Board.
James J. Burns, Jr., of Willmann, Burns Sack, for appellant.
J.P. Patterson and S.G. Alter, for appellee, were not heard.
Argued April 23, 1936.
The defendant appealed to the court of common pleas from an order of the Workmen's Compensation Board, made September 6, 1934, granting a rehearing of claimant's petition for compensation for injuries alleged to have been sustained by him on November 24, 1929, while in the course of his employment with defendant. The court dismissed the appeal as premature. We agree with the court below that an appeal does not lie from such an interlocutory order. We are satisfied, moreover, that the order was within the discretionary power of the Board.
Claimant's petition for compensation, filed November 25, 1929, was disallowed on August 8, 1930. An appeal was taken to the Board on August 16, 1930, and on November 22, 1930 the referee's order disallowing compensation was affirmed by the Board.
On January 17, 1931, less than two months after the Board's action, the claimant filed a petition for a rehearing with the Workmen's Compensation Bureau at Pittsburgh. It was received by the Board at Harrisburg on January 31, 1931. Through some oversight on the part of the Board, due probably to a change of personnel on February 19, 1931, this petition escaped the attention of the Board and was not acted on until September 6, 1934 when the rehearing was granted. No notice of the filing of the petition for rehearing was served on the defendant by the secretary of the Board, whose duty it was to do so under Section 414 of the Act as amended by Act of June 26, 1919, P.L. 642. These circumstances, however, were due to no fault or neglect of the claimant and he should not be visited with the consequences of the Board's oversight or neglect. He did all that the Act required him to do, and the Board can do now what it might have done then. See Shetina v. Pittsburgh Terminal Coal Corp., 114 Pa. Super. 108, 111, 173 A. 727; Horton v. West Penn Power Co., 119 Pa. Super. 465, 180 A. 56.
Claimant's rights under his petition for a rehearing, which was filed in time, but overlooked by the Board, cannot be affected by the discharge of subsequent proceedings on his behalf on the erroneous assumption that no petition for a rehearing had been filed within the time limited by statute and the matter had therefore been finally adjudicated and determined adversely to him.
Sec. 426 of the Workmen's Compensation Act, as amended by Acts of June 26, 1919, P.L. 642, and April 13, 1927, P.L. 186, p. 196.
The Board, in allowing a rehearing, made no ruling on the merits of the case, and our action herein is not to be construed as an expression of opinion on anything but the point of practice involved.
The order is affirmed.