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ROCKWOOD INSURANCE CO. AND FRED KOVALCHUCK v. WORKMEN'S COMPENSATION APPEAL BOARD AND MARILYN LEE LOULIS (10/23/74)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: October 23, 1974.

ROCKWOOD INSURANCE CO. AND FRED KOVALCHUCK, T/A KOVALCHUCK'S MARKET, APPELLANTS,
v.
WORKMEN'S COMPENSATION APPEAL BOARD AND MARILYN LEE LOULIS, APPELLEES

Appeal from the Order of the Workmen's Compensation Appeal Board in case of Marilyn Lee Loulis v. Fred Kovalchuck, t/a Kovalchuck's Market, No. A-67279.

COUNSEL

Robert W. Critchfield, for appellants.

Bernard S. Shire, with him James N. Diefenderfer, for appellees.

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

Author: Crumlish

[ 15 Pa. Commw. Page 500]

This is an appeal by an employer, Kovalchuck's Market, and its carrier, Rockwood Insurance Company, from a determination of the Workmen's Compensation Appeal Board affirming the decision of the referee who awarded Claimant, Marilyn Lee Loulis, compensation for total disability and from a finding that the claim petition was not barred by the applicable statute of limitations. The facts, as found by the referee and binding upon this Court as supported by substantial evidence, can be summarized as follows:

[ 15 Pa. Commw. Page 501]

On October 21, 1967, Claimant, while in the regular course of her employment, suffered an accident in which she injured her right ankle, left elbow, left hand, both knees, abdomen, and lower spine. On May 15, 1968, a claim petition was prepared using information furnished by Claimant. She signed the petition and it was notarized by a duly commissioned Notary Public. It was properly addressed, posted and mailed to the Commonwealth of Pennsylvania, Department of Labor and Industry, Bureau of Workmen's Compensation, Harrisburg, Pennsylvania. When the attorney for the Claimant became aware that the claim had not been set down for hearing, he communicated by telephone and written correspondence with the Department to determine his client's status. Two letters of inquiry were sent before the period of limitations expired, one on January 18, 1969, and one on February 6, 1969, neither of which was answered by the Department. He called the Department, and in March of 1969, was instructed by the secretary to the Assistant Director of the Bureau of Workmen's Compensation, to prepare a new claim petition, and forward the same to the Bureau in the same form as the original, and was further instructed that it would have the same force and effect as the original claim petition filed May 15, 1968. The new claim petition was filed with the Bureau on March 20, 1969.

Charlotte Baciak (Notary Public who took Claimant's affidavit), testified that on May 15, 1968, she prepared, typed and notarized the claim petition which had been signed by the Claimant. She also testified that she properly addressed and posted the claim petition and deposited the same in the United States mails. Her oral testimony as to the preparation, typing and seal was substantiated by independent evidence consisting of business records. The Claimant's attorney also testified to the events which culminated in the claim petition

[ 15 Pa. Commw. Page 502]

    being properly addressed, posted and deposited in the mails.

The sole question raised by this appeal*fn1 is whether this first claim petition was properly "filed" within the meaning of Section 315 of the Workmen's Compensation Act, Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 602, which provides, inter alia, as follows: "In cases of personal injury all claims for compensation shall be forever barred, unless, . . . within sixteen months after the accident, one of the parties shall have filed a petition as provided in article four hereof."*fn2 (Emphasis added.) The relevant section of article four is Section 403, 77 P.S. § 714, which provided: "[a]ll petitions . . . shall be mailed or delivered to the department at its principal office." (Emphasis added.)

We must decide whether the instant appeal falls within the bounds of Laffey v. Philadelphia and Reading Coal and Iron, 125 Pa. Superior Ct. 9, 189 A. 509 (1937). Laffey presented a situation where the claim petition was mailed within the period of limitation but somehow was subsequently lost. The court had little difficulty following the hornbook definition in holding that, "it was delivered, so far as the claimant was concerned, when it was 'deposited in the mails.'"

For a better understanding of that holding, a presentation of the rationale is in order. The Court cited

[ 15 Pa. Commw. Page 503832]

, 835 (1956), the Court stated, "the Workmen's Compensation Act must be liberally construed and that technicalities are not looked upon with favor in compensation cases."

Here we have Laffey revisited. The referee has made a finding supported by competent evidence that a claim petition was duly mailed within the sixteen month period of limitation. Notwithstanding absence of receipt, or perhaps mishandling by the Department,*fn3 and the confusion in the resulting correspondence, we must find that Claimant is not barred by the statute of limitations. We therefore enter the following

Order

And Now, this 23rd day of October, 1974, the award of the Workmen's Compensation Appeal Board is hereby affirmed. Accordingly, it is ordered that judgment be entered in favor of Marilyn Lee Loulis against Rockwood Insurance Co., and/or Fred Kovalchuck, t/a Kovalchuck's Market, for compensation for total disability at the rate of $33.33 per week for the period commencing October 23, 1967, into the indefinite future, together with the following medical expenses heretofore incurred:

A. Divine Providence Hospital, 1004 Arch

Street, Pittsburgh, Pennsylvania $816.00

B. Ortho-Xray Lab., 7068 Jenkins Arcade,

Pittsburgh, Pennsylvania 35.00

[ 15 Pa. Commw. Page 505]

    together with legal interest on deferred or unpaid installments, all within the terms and limitations of the Pennsylvania Workmen's Compensation Act.

Disposition

Affirmed.


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