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EUGENE JOHNSON v. WORKMEN'S COMPENSATION APPEAL BOARD AND BERNARD S. PINCUS COMPANY (07/09/74)

decided: July 9, 1974.

EUGENE JOHNSON, APPELLANT,
v.
WORKMEN'S COMPENSATION APPEAL BOARD AND BERNARD S. PINCUS COMPANY, APPELLEES



Appeal from the Order of the Workmen's Compensation Appeal Board in case of Eugene Johnson v. Bernard S. Pincus Company, No. A-64701.

COUNSEL

Leonard Rubin, for appellant.

David F. Kaliner, for appellees.

Judges Crumlish, Jr., Mencer and Rogers, sitting as a panel of three. Opinion by Judge Crumlish, Jr.

Author: Crumlish

[ 14 Pa. Commw. Page 221]

This appeal is from an order of the Workmen's Compensation Appeal Board, dated October 23, 1973, denying a petition for a rehearing filed by Eugene Johnson (Appellant) pursuant to Section 426 of the Workmen's Compensation Act, Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 871.

Appellant suffered a compensable injury while in the regular course of his employment with Bernard S. Pincus Company (Appellee) on November 21, 1968. The parties hereto entered into a compensation agreement on December 30, 1968 which provided for the payment of $60.00 per week in compensation for Appellant's injuries. A final receipt was subsequently executed by Appellant acknowledging that he had returned to work on December 2, 1968 without any disability or loss of earning power due to the injuries sustained in the accident, and that he had received $25.71 in compensation for a period of three-sevenths of a week.

Appellant continued to work until May 14, 1969 when he terminated his employment to enter a VA hospital to undergo treatment for an unrelated ailment. He thereafter filed a petition to set aside a final receipt alleging total disability due to injuries to his left knee residual to the November 1968 accident. Hearings were held before a referee in September and December

[ 14 Pa. Commw. Page 222]

    of 1970 and June of 1971, at which Appellant was represented by privately retained counsel. At the last hearing, the parties stipulated to the admission into evidence of medical reports by Appellant's treating physicians and a dentist in lieu of their testimony in person. On August 3, 1971, the referee entered a decision denying the petition, concluding that Appellant had failed to sustain his burden of proof. The Board on appeal affirmed the referee's decision on March 16, 1972. No appeal was taken from this decision.

Appellant, through a second attorney, filed the instant petition for a rehearing with the Board on June 26, 1973. In support of this petition, appellant alleged, inter alia, that he was deprived of the effective assistance of counsel guaranteed by the Fourteenth Amendment of the United States Constitution and Article I, § 9 of the Pennsylvania Constitution because his prior counsel failed to secure the appearance and testimony of Appellant's treating physicians, and thus he was unable to prove a continuing compensable injury. The Board denied a rehearing on October 23, 1973 because 1) it lacked jurisdiction to consider the petition as the statutory appeal period had run; and 2) it found without merit Appellant's "argument that the ineptness of his previous attorney is a ground for granting this Petition for Rehearing." Appellant appeals both determinations to this Court.

Initially, we must dispose of Appellant's contention that the Board deprived him of the due process of law guaranteed by the Fourteenth Amendment of the United States Constitution and Article I, § 9 of the Pennsylvania Constitution when it denied that incompetency of counsel is a ground for granting a rehearing under Section 426 of the Act, 77 P.S. § 871. Even were we ...


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