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KAUFMANN'S DEPARTMENT STORE AND UNDERWRITERS ADJUSTING COMPANY v. COMMONWEALTH PENNSYLVANIA (03/08/82)

decided: March 8, 1982.

KAUFMANN'S DEPARTMENT STORE AND UNDERWRITERS ADJUSTING COMPANY, PETITIONERS
v.
COMMONWEALTH OF PENNSYLVANIA, WORKMEN'S COMPENSATION APPEAL BOARD AND VIVIAN SILVERBERG (HYMAN), RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in case of Vivian Silverberg (Hyman) v. Kaufmann's Department Store and Underwriters Adjusting Company, No. A-77021.

COUNSEL

David M. McCloskey, Will & Keisling, for petitioners.

Marshall J. Conn, with him Henry Gusky, Plowman & Spiegel, for respondent, Vivian Silverberg (Hyman).

Judges Mencer, Craig and MacPhail, sitting as a panel of three. Opinion by Judge Mencer. Judge Palladino did not participate in the decision in this case.

Author: Mencer

[ 65 Pa. Commw. Page 197]

Kaufmann's Department Store and its insurer, Underwriters Adjusting Company (petitioners) have appealed from a decision of the Workmen's Compensation Appeal Board (Board) which denied their application for rehearing of a termination petition. We vacate and remand.

Vivian Silverberg Hyman (claimant) was employed as a salesperson by Kaufmann's on November 20, 1972, when she injured her left knee in a work-related accident. She was awarded workmen's compensation benefits for partial disability as a result of this injury. The petitioners filed a termination petition in 1974 which was denied, and partial disability benefits were

[ 65 Pa. Commw. Page 198]

    continued. On September 6, 1977, the petitioners filed a second termination petition which was also denied, but this time the referee found that the claimant's disability had become greater and awarded total disability benefits.

The referee's decision was appealed to the Board, which upheld the increase in benefits. An appeal was filed with this Court, and the petitioners simultaneously petitioned the Board for a rehearing on the basis of "newly discovered evidence." The Board permitted reargument but did not hear additional evidence and dismissed the petition because "it cannot be said that the claimant now suffers a disability completely unrelated to her injury." (Emphasis added.)

'The purpose of a rehearing is to take testimony not offered at the original hearing, either because it was not available, or because of some actual disability of the petitioner existing at the time.' Powell v. Sonntag, 159 Pa. Superior Ct. 354, 361, 48 A.2d 62, 66 (1946). The petitioner must aver that the alleged evidence was obtained after the hearing and that, even by the exercise of ordinary diligence, it could not have been presented at the hearing. Schach v. Hazle Brook Coal Company, 130 Pa. Superior Ct. 430, 198 A. 464 (1938).

Fetzer v. Michrina, 8 Pa. Commonwealth Ct. 273, 276-77, 301 A.2d 924, 926 (1973).

In the present case, the Board dismissed the petition for reargument without taking evidence on these factual issues. In effect, the Board said that, even if this evidence were newly discovered and totally true, it could ...


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