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FLOYD POWELL v. COMMONWEALTH PENNSYLVANIA (04/01/82)

decided: April 1, 1982.

FLOYD POWELL, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, WORKMEN'S COMPENSATION APPEAL BOARD, CRAFT OIL CO. AND STATE WORKMEN'S INSURANCE FUND, RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in case of Floyd Powell v. Craft Oil Company, No. A-78901.

COUNSEL

Joseph P. Lenahan, Lenahan and Dempsey, for petitioner.

William C. Sleppacher, with him Paul J. Dufallo, for respondent, State Workmen's Insurance Fund.

Judges Rogers, Blatt and Williams, Jr., sitting as a panel of three. Opinion by Judge Blatt. Judge Palladino did not participate in the decision in this case.

Author: Blatt

[ 65 Pa. Commw. Page 589]

The petitioner, Floyd Powell, seeks review of an order of the Workmen's Compensation Appeal Board which reversed a referee's decision granting his petition to set aside final receipt and reinstate benefits for total disability.

In August of 1972, the petitioner suffered a back injury while employed by Craft Oil Company (employer) for which he received total disability benefits. On October 29, 1974, he executed a final receipt indicating that he was able to return to work. In December of 1976 his injury recurred and, on September 2, 1977, without aid of counsel, he filed another claim petition which was treated by the referee as a petition to set aside final receipt. He subsequently obtained counsel and numerous hearings were scheduled all of which were continued at the request of his attorney. Finally, his counsel moved to withdraw the petition on the ground that no medical evidence could be obtained to support it. Subsequently, the petitioner obtained another attorney who, on March 28, 1979, filed another petition to set aside final receipt and, after hearings were held, the referee reinstated compensation holding that the withdrawal of the first petition to set aside final receipt was invalid because it was requested without petitioner's consent. On appeal, the Board reversed the referee, holding that, the petitioner having failed to appeal the order withdrawing the first petition, that order became final and could not be vacated. The Board then concluded

[ 65 Pa. Commw. Page 590]

    that the petitioner's second petition must be dismissed inasmuch as it was not timely filed within the three-year statute of limitations imposed by Section 434 of The Pennsylvania Workmen's Compensation Act (Act), Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 1001. This petition for review followed.

The petitioner contends that this case is governed by our Supreme Court's recent decision in Bigley v. Unity Auto Parts, Inc., 496 Pa. 262, 436 A.2d 1172 (1981).

In Bigley, the claimant was injured on September 3, 1973, when the vehicle in which he was a passenger on his way home from work, and which was operated by a co-worker, was involved in an accident. He subsequently filed both a trespass action against his employer in the court of common pleas and a workmen's compensation claim, this claim being filed on September 5, 1975. This action in trespass was later settled and the claimant agreed to prosecute only his workmen's compensation claim. In February of 1977, however, the claimant's attorney requested a withdrawal of the claim, which was granted, and no appeal was taken from that order. In October of 1977, he obtained new counsel and filed a petition to reinstate his claim. This petition was dismissed by the referee, and the Board affirmed the dismissal on the ground that the unappealed order granting withdrawal was final and that the petition for reinstatement was not filed within the three-year statute of limitations prescribed in Section 315 of the Act, 77 P.S. § 602. That decision was upheld by this Court, but on appeal the Supreme Court reversed.

The Supreme Court held that the workmen's compensation authorities have board administrative discretion in determining whether or not to permit the ...


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