Appeal from the Order of the Workmen's Compensation Appeal Board in case of Natea Drafts v. Bennett Shelburne Company, No. A-70223.
Edward F. Silva, for appellant.
David L. White, with him John F. McElvenny, and James N. Diefenderfer, for appellees.
Judges Crumlish, Jr., Kramer and Rogers, sitting as a panel of three. Opinion by Judge Kramer.
This is an appeal by Natea Drafts from an order of the Workmen's Compensation Appeal Board, dated October 16, 1975, which affirmed a referee's order terminating Drafts' benefits. The only issue is whether Drafts should have been permitted to appeal nunc pro Page 78} tunc under the facts of this case. We hold that the appeal should have been allowed and remand.
On May 13, 1972, Drafts suffered a compensable injury. In recognition of its obligations, the employer's insurance carrier began paying benefits in accordance with a Notice of Compensation Payable which listed Drafts' address as 5040 Camac Street, Philadelphia. This is the address of Drafts' employer. Drafts returned to work on October 29, 1972, and a Supplemental Agreement reflecting this fact was filed on April 4, 1973. The Supplemental Agreement indicated that Drafts' address was still 5040 Camac Street.
Drafts' disability recurred on April 30, 1973, and a new Supplemental Agreement reinstating benefits was filed on May 16, 1973. Like the prior agreements, this document was signed by Drafts and indicated his address as 5040 Camac Street.
On November 20, 1974, the employer filed a Petition for Termination or Modification which alleged that the Drafts' disability had ceased on September 12, 1974. This petition also recited the 5040 Camac Street address. Because the petition did not contain a physician's affidavit or an allegation that Drafts had returned to work, it did not afford the employer an automatic supersedeas and, accordingly, the carrier continued to pay benefits to Drafts. The checks reached Drafts through his attorney, to whom they were forwarded.
After the petition was filed a notice assigning the case to a referee was sent to Drafts at the 5040 Camac Street address. Likewise, a notice of hearing was sent to Drafts at the Camac Street address. When Drafts failed to appear at the hearing, the referee granted a continuance and sent another notice to Camac Street. Drafts again failed to appear and the referee granted the employer a summary termination of benefits, no evidence having been received. A copy of this decision,
dated March 24, 1975, with a notation that an appeal to the Board must be taken within 20 days, was sent to Drafts at the Camac Street address.
On April 6, 1975, the carrier stopped paying benefits to Drafts in accordance with the termination order. When the checks stopped arriving, Drafts' counsel inquired by telephone regarding the reason for the carrier's tardiness. The employer alleges that on April 23, 1975, when this call was made, Drafts' counsel was advised for the first time of the termination proceedings. The time for appeal to the Board ...