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JOSEPH H. COHEN v. COMMONWEALTH PENNSYLVANIA (01/24/78)

decided: January 24, 1978.

JOSEPH H. COHEN, INC., PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, WORKMEN'S COMPENSATION APPEAL BOARD AND LUCILLE GREENWOOD, RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in cases of Lucille Greenwood v. Joseph Cohen, Inc. and Commonwealth of Pennsylvania, Nos. A-68006 and A-71515.

COUNSEL

Susan J. Poll, with her John F. McElvenny, for petitioner.

Charles E. McClafferty, with him Thomas F. McDevitt; Mary Ellen Krober, Assistant Attorney General, and James N. Diefenderfer, for respondents.

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

Author: Wilkinson

[ 33 Pa. Commw. Page 350]

This appeal comes before us following a decision of the Workmen's Compensation Appeal Board (Board) granting workmen's compensation benefits to the claimant. We affirm.

The procedural history of this case is long and difficult. This is due in large part to a series of clerical errors on the part of the referee which in turn led to a great deal of confusion among the parties and the Board. The parties cannot be penalized for these clerical errors. Since we cannot "undo" the errors, our task is simply to decide whether the Board correctly handled the case upon discovering them.

On November 18, 1968, the claimant properly filed two petitions for relief. One was filed under the provisions of Section 402 of The Pennsylvania Workmen's Compensation Act, Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 711, and was labeled claim petition number 220,453. The other was filed in accordance with Section 403 of The Pennsylvania Occupational Disease Act, Act of June 21, 1939, P.L. 566, as amended, 77 P.S. § 1503, and was labeled claim petition number 220,454. Hearings were then held before a referee, concluding on October 24, 1973.

At this point, a succession of clerical errors began. On November 26, 1973, the referee wrote two separate

[ 33 Pa. Commw. Page 351]

    decisions, one granting occupational disease benefits, and the other denying workmen's compensation benefits. Unfortunately, the referee misnumbered the decisions, so that the occupational disease decision was incorrectly labeled 220,453, and the workmen's compensation decision was incorrectly labeled 220,454. To compound the problem, while the workmen's compensation decision was sent on December 7, 1973, the decision granting occupational disease benefits was not sent out until December 30, 1973. As if this were not enough, the workmen's compensation decision was forwarded only to counsel for the claimant and the petitioner's insurance carrier, not to the Commonwealth. All parties received notice of the occupational disease decision.

At this point, the referee realized some of the errors that had been made, for an amended occupational disease decision with the correct reference number was sent to all parties on December 30, 1973, while an amended workmen's compensation decision with the correct reference number was sent to counsel for claimant and the petitioner's insurance carrier on January 4, 1974.

On January 15, 1974, the Commonwealth, in an apparent effort to contest the grant of occupational disease benefits, since under that decision it would be responsible for all benefits accruing to the claimant, filed an appeal with reference to claim number 220,453, the workmen's compensation claim. The Board, on July 18, 1974, sustained the Commonwealth's appeal. In its opinion, the Board, writing in regard to petition number 220,453, reversed the award of occupational disease benefits and remanded the case to the referee to determine if the claimant was eligible for workmen's ...


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