Appeal from the Order of the Workmen's Compensation Appeal Board in the case of Sophie Cisco v. A & P Tea Company, No. A-85702.
David Kanner, for petitioner.
Gregory D. Geiss, Swartz, Campbell & Detweiler, for respondent, A & P Tea Company.
Judges Rogers, Craig and Doyle, sitting as a panel of three. Opinion by Judge Doyle. This decision was reached prior to the resignation of Judge Williams, Jr.
[ 88 Pa. Commw. Page 175]
Sophie Cisco (Claimant) appeals from the decision of the Workmen's Compensation Appeal Board (Board) which affirmed the referee's decision terminating Claimant's benefits under Section 408 of The Pennsylvania Workmen's Compensation Act (Act).*fn1
[ 88 Pa. Commw. Page 176]
Claimant suffered a back injury on July 11, 1978, while employed at the A & P Tea Company (Employer) and began receiving disability compensation pursuant to a Notice of Compensation Payable. Claimant returned to work in September of 1978, but during the next two years suffered periodic reoccurrences of her injury which resulted in a series of six supplemental agreements, the last of which was executed on November 19, 1980. On March 30, 1981, Employer filed a petition for termination of the November, 1980 agreement, alleging that Claimant had fully recovered.
After a full hearing, the referee granted Employer's petition, and terminated benefits. On appeal to the Board, Claimant alleged that Employer had withdrawn from a binding settlement agreement entered into subsequent to the referee's hearing, and requested a remand for additional evidence on that issue. The Board denied the request, and affirmed the referee's decision. Appeal to this Court followed.*fn2
Claimant argues that the Board erred in failing to grant a remand for additional evidence on the settlement agreement. A request for remand to the referee, when accompanied by supporting evidence, constitutes the equivalent of a petition for rehearing, which is granted to allow a party to present newly discovered,
[ 88 Pa. Commw. Page 177]
non-cumulative evidence. Jones v. Workmen's Compensation Appeal Board (First Pennsylvania Bank), 76 Pa. Commonwealth Ct. 345, 347, 463 A.2d 1266, 1267 (1983). The decision whether to grant or deny such petition is within the Board's discretion and will not be reversed except for an abuse of that discretion. Id. at 347, 463 A.2d at 1268. We note that Claimant raised her request for remand in the context of her appeal from the referee's decision; thus the Board was technically correct in concluding that it could not consider the non-record evidence, and thus could not reach the merits of the request. We conclude, however, that even had the request been properly brought as a separate action under Section 426 of the Act,*fn3 77 P.S. § 871, the result would have been the same.
The only documents submitted to the Board in support of the claim of an agreement were two letters from Employer's attorney. Section 407 of ...