Appeal from the Order of the Workmen's Compensation Appeal Board in case of Charles Pecora, Jr. v. Pittsburgh Press Company, No. A-81624.
Raymond F. Keisling, Will and Keisling, for petitioners.
Edward H. Walter, Jubelirer, Pass & Intrieri, P.C., for respondents.
Judges Rogers, Palladino and Barbieri, sitting as a panel of three. Opinion by Judge Barbieri.
[ 82 Pa. Commw. Page 539]
Pittsburgh Press Company, employer, and its insurer, Vigilant Insurance Company (Petitioners), seek review here of an order of the Workmen's Compensation Appeal Board affirming a referee's decision reinstating workmen's compensation benefits to Charles Pecora, Jr., for total disability. We affirm.
Principally, on this appeal, Petitioners assert that the referee and the Board erred by approving the reinstatement of benefits on the basis of a recurrence of disability where the petition filed by the Claimant was a Petition to Set Aside Final Receipt; that as a proceeding to set aside the final receipt, there was insufficient proof that disability had not ceased at the time the final receipt was signed; and that, therefore, the final receipt remains as a bar to the relief sought by Claimant. In so urging, Petitioners seem unaware that the relief sought in the petition is for a recurrence and not for error as to disability at the time the receipt was signed.*fn1 The prayer of the petition reads:
[ 82 Pa. Commw. Page 540]
"on or about July 31, 1978, the original injury reoccurred and I have been unable to work since that time." The referee, in turn, made the following finding of fact:
11. Your Referee finds as a fact, after having reviewed the Claimant's testimony and the conflicting medical evidence of record, that Claimant had a recurrence of disability resulting from the injuries originally sustained at work on March 23, 1976, and that Claimant has been totally disabled from July 31, 1978, and is presently totally disabled, and your Referee chooses to accept the medical opinion of causation and disability expressed by Dr. ElAttrache, as fact.
The referee accordingly concluded that the prayer of the petition, albeit misnamed, should be granted.
The prayer granted, of course, was for reinstatement based on a recurrence under Section 413 of the Pennsylvania Workmen's Compensation Act (Act).*fn2 Petitioner's characterization of this as error is misconceived. It was the referee's prerogative and duty to rule as he did, given his finding of recurred disability. It has long been the rule in workmen's compensation cases that the form of the petition filed is not controlling where the facts warrant relief, and that if a claimant is entitled to relief under any section of the Act, his petition will be considered as filed ...