Opinion
No. 1616 C.D. 2014
04-22-2015
Celadon Trucking Services, Inc. and Ace American Insurance Company, Petitioners v. Workers' Compensation Appeal Board (Barber), Respondent
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE LEAVITT
Celadon Trucking Services, Inc. (Employer) petitions for review of an adjudication of the Workers' Compensation Appeal Board (Board) quashing Employer's appeal as untimely and denying Employer's request for a hearing de novo or remand. As a result of the Board's actions, the decision of the Workers' Compensation Judge (WCJ) granting the claim petition of Catherine Barber (Claimant) remained in effect. Employer argues its appeal should be heard, despite its untimeliness, because the WCJ lacked jurisdiction to grant the claim petition and because the decision was arbitrary and capricious. We affirm.
Claimant worked for Employer as a truck driver, earning .44 cents per mile. On September 6, 2013, Claimant filed a claim petition alleging that she was injured when she "fell out of a semi-truck and landed on her right side and hit her head on the ground." Reproduced Record at 1a (R.R. ___). Claimant asserted work-related injuries to her head, neck, right arm, right hip, and right leg. She contended that the injuries occurred on Employer's property and that she notified her supervisor of the injuries on September 12, 2012, the day of the incident. Claimant requested full disability benefits as of May 20, 2013, and ongoing, pursuant to the Workers' Compensation Act (Act).
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§1-1041.4, 2501-2708.
The WCJ scheduled a hearing for January 21, 2014, but Employer did not attend. At that time, Claimant's counsel noted that Employer had not filed an answer and, based on this failure, requested that the factual allegations raised in the claim petition be deemed admitted and all affirmative defenses be barred.
The WCJ agreed. Because Employer failed to file a timely answer, this Court's holding in Yellow Freight Systems, Inc. v. Workmen's Compensation Appeal Board (Madara), 423 A.2d 1125 (Pa. Cmwlth. 1981), required that factual allegations be deemed true and affirmative defenses be barred. The WCJ granted Claimant full disability benefits, with a weekly compensation rate of $733.33, based on an average weekly wage of $1,100.00.
The WCJ's decision was issued on February 12, 2014. On April 21, 2014, Employer appealed to the Board. Claimant filed a motion to quash the appeal as untimely. Employer then filed a motion for hearing de novo or a remand hearing.
The Board quashed Employer's appeal. The Board explained that Section 423(a) of the Act, 77 P.S. §853, permits a party to appeal within 20 days of service of the WCJ's decision. The WCJ circulated the decision on February 12, 2014, making March 4, 2014, the last day to file a timely appeal. Employer's appeal was not filed until April 21, 2014, and, thus, was untimely.
It states:
Any party in interest may, within twenty days after notice of a workers' compensation judge's adjudication shall have been served upon him, take an appeal to the board on the ground: (1) that the adjudication is not in conformity with the terms of this act, or that the workers' compensation judge committed any other error of law; (2) that the findings of fact and adjudication was unwarranted by sufficient, competent evidence or was procured by fraud, coercion, or other improper conduct of any party in interest. The board may, upon cause shown, extend the time provided in this article for taking such appeal or for the filing of an answer or other pleading.77 P.S. §853.
The Board noted that Employer's appeal requested nunc pro tunc relief, which is available when a party establishes that the late filing was due to fraud, coercion or certain non-negligent conduct. However, Employer did not offer any explanation for its late filing. Instead, Employer requested a hearing or remand pursuant to Section 425 of the Act, 77 P.S. §856.
It provides:
If on appeal it appears that the [WCJ's] award or disallowance of compensation was capricious or caused by fraud, coercion, or other improper conduct by any party in interest, the board may, grant a hearing de novo before the board, or one or more of its members or remand the case for rehearing to any [WCJ]. If the board shall grant a hearing de novo, it shall fix a time and place for same, and shall notify all parties in interest.77 P.S. §856.
As soon as may be after any hearing by the board, it shall in writing state the findings of fact, whether those of the [WCJ] or its own, which are basic to its decision and award or disallow compensation in accordance with the provisions of this act.
Section 425 of the Act permits the Board to hold its own hearing or remand to the WCJ, when the WCJ's decision is capricious or caused by fraud, coercion, or other improper conduct by a party. However, the Board explained that it cannot grant such relief where there has not been a timely appeal filed or grounds for nunc pro tunc relief asserted. Stated otherwise, a petition for a rehearing is not a substitute for a timely appeal. The Board denied Employer's request for a de novo hearing or remand.
Employer now petitions for this Court's review. First, Employer argues that the Board erred in quashing its appeal because the WCJ lacked jurisdiction to enter a dispositive order. Second, Employer argues that the Board erred because the WCJ lacked jurisdiction.
Our scope of review is limited to determining whether the findings of fact are supported by the evidence, whether constitutional rights were violated, or whether errors of law were committed. Johnson v. Unemployment Compensation Board of Review, 869 A.2d 1095, 1103 n.2 (Pa. Cmwlth. 2005).
In its first argument, Employer contends that the claim petition did not establish where the injury occurred. The claim petition states the injury occurred on Employer's property, but it does not identify the location of that property. No other evidence was offered on this issue. Therefore, even assuming that all facts in the claim petition are true, there is no factual finding that the injury occurred in Pennsylvania. Absent that finding, there is no way to know that the WCJ had subject matter jurisdiction. Section 305.2(a) of the Act, 77 P.S. §411.2(a), permits coverage under the Act for "injuries occurring extraterritorially" under certain conditions, e.g., where the employment is principally localized in Pennsylvania. However, Claimant did not make any claim that any of the conditions set forth in Section 305.2(a) of the Act were present. Employer argues that subject matter jurisdiction may be raised at any time. Claimant responds that because the Board lacked jurisdiction, it could not correct the errors in the WCJ decision asserted by Employer. Further, Employer has never presented any reasons for its failure to file a timely appeal.
Section 305.2(a) was added by the Act of December 5, 1974, P.L. 782, and it provides:
(a) If an employe, while working outside the territorial limits of this State, suffers an injury on account of which he, or in the event of his death, his dependents, would have been entitled to the benefits provided by this act had such injury occurred within this State, such employe, or in the event of his death resulting from such injury, his dependents, shall be entitled to the benefits provided by this act, provided that at the time of such injury:
77 P.S. §411.2(a). --------(1) His employment is principally localized in this State, or
(2) He is working under a contract of hire made in this State in employment not principally localized in any state, or
(3) He is working under a contract of hire made in this State in employment principally localized in another state whose workmen's compensation law is not applicable to his employer, or
(4) He is working under a contract of hire made in this State for employment outside the United States and Canada.
Notably, Employer does not claim that Claimant's injury actually occurred out-of-state. It merely argues that the record is insufficient to make such a determination.
Section 423(a) of the Act gives an employer 20 days to appeal to the Board, and it provides that "[a]ppeals filed after this timeframe are untimely and divest the Board of jurisdiction to reach the merits of the issues raised in the appeal." Mills v. Workers' Compensation Appeal Board (School District of Harrisburg), 24 A.3d 1094, 1096 (Pa. Cmwlth. 2011). Absent a timely appeal, deficiencies in the WCJ's decision cannot be considered by the Board.
Under extraordinary circumstances, the deadline for filing an appeal may be extended by granting nunc pro tunc relief. In order for such relief to be granted, a party must establish fraud; a breakdown in the court's operations; or non-negligent circumstances showing the delay was beyond the party's control. City of Philadelphia v. Trill, 906 A.2d 663, 666 (Pa. Cmwlth. 2006). Employer offered no reasons to allow a nunc pro tunc appeal. Accordingly, the Board properly quashed the untimely appeal.
Employer's second argument is that notwithstanding an untimely appeal, a hearing may be granted pursuant to Section 425 of the Act 77 P.S. §856. In Riley Stoker Corporation v. Workmen's Compensation Appeal Board, 308 A.2d 205 (Pa. Cmwlth. 1973), a claimant raised the identical argument. The claimant asserted that even though his appeal was untimely, the Board had authority to grant a remand under Section 425 of the Act. We disagreed, explaining that "a valid appeal to the Board is a prerequisite to its grant of a rehearing" under Section 425 of the Act. Riley Stoker Corporation, 308 A.2d at 207 (emphasis added). We found it "perfectly clear that a petition for a rehearing is not a substitute for an appeal." Id. (quoting Powell v. Sonntag, 48 A.2d 62, 63 (Pa. Super. 1946)). Employer's second argument lacks merit.
For these reasons, we affirm the Board's adjudication.
/s/_________
MARY HANNAH LEAVITT, Judge ORDER
AND NOW, this 22nd day of April, 2015 the order of the Workers' Compensation Appeal Board, dated August 13, 2014, in the above-captioned matter is hereby AFFIRMED.
/s/_________
MARY HANNAH LEAVITT, Judge