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decided: July 3, 1986.


Appeal from the Order of the Workmen's Compensation Appeal Board, in case of Charles Thomas Reilly v. General Electric Company, No. A-84746.


Harold I. Goodman, with him, Loralyn McKinley, for petitioner.

Martin J. Fallon, Jr., Swartz, Campbell & Detweiler, for respondent, General Electric Company.

Judges Rogers and MacPhail, and Senior Judge Barbieri, sitting as a panel of three. Opinion by Senior Judge Barbieri.

Author: Barbieri

[ 98 Pa. Commw. Page 489]

Before the Court is the petition of Charles Thomas Reilly, Claimant, seeking review of an order of The Workmen's Compensation Appeal Board (Board), dated November 29, 1984, dismissing Claimant's Reinstatement Petition and denying Claimant's right to be heard on the basis of an appeal nunc pro tunc from a referee's decision, a decision which consisted of the recital of a stipulation and an order based thereon dismissing a claim petition. Unfortunately, the tortuous

[ 98 Pa. Commw. Page 490]

    and unduly prolonged course this case has taken in Claimant's efforts to achieve consideration by the compensation authorities of his claim on the merits is not yet over, since we must remand.

The basic question here is whether or not Claimant is entitled to a hearing on the merits of his case.

Proceedings originally were initiated in the customary fashion by Claim Petition, dated October 13, 1971, averring the happening of an "accident"*fn1 on or about December 18, 1970, while Claimant was engaged in his employment by General Electric Company, (Employer), when "an airline broke and a pipe hit me on the left side of head and neck" causing injury described: "I fell off platform and was bleeding from ear." The petition goes on to aver that Claimant was treated in the "dispensary [by] Dr. DiGiovanni, seeking disability for the period December 9, 1970 to on or about May 12, 1971." This petition was dismissed by a referee's order dated January 30, 1973, pursuant to a stipulation disavowing liability and calling for dismissal. The consideration paid for the agreement was $1,000. Proofs in this case are undisputed that at the time of the stipulation and the referee's dismissal of the petition Claimant was disabled from injuries suffered in or resulting from, the accident of December 18, 1970, with work-related total disability continuing during most of the time since that date. Claimant's medical expert, attending psychiatrist, testified that during his years of having Claimant for a patient, from February 1, 1972, Claimant has been disabled, attempting work briefly without success on one occasion early in the relationship.

[ 98 Pa. Commw. Page 491]

The instant petition, titled "PETITION TO SET ASIDE REFEREE'S ORDER, TO REINSTATE CLAIM PETITION, AND TO AWARD BENEFITS," was filed by Claimant's present attorney after Claimant's experience with several attorneys, none of whom filed a petition on his behalf. The petition before us was filed on December 9, 1976 averring therein that the decision and order of January 30, 1973, was "null and void because it effectuated an illegal compromise of my workmen's compensation injury in violation of Section 407 of The Pennsylvania Workmen's Compensation Act, 77 P.S. ยง 731;" "that the Stipulation upon which referee Stevenson's*fn2 order was based was fraudulently obtained;" that Claimant did not appeal the decision because he was hospitalized and incapacitated and thereafter was "misled by Bureau officials and also intentionally deceived by agents of my employer;" and that from "December 18, 1970 until January 17, 1973 I was disabled and unable to work except for sporadic periods. After January 17, 1973, I have not been able to return to work at all." This petition came before a referee other than Referee Stevenson, Referee Stander, who expressed the view in his decision of January 14, 1980 that he did not feel that he had the power or authority to consider a petition to set aside the decision of another referee, although adding that "Claimant's serious allegations deserve an opportunity to be heard by the proper tribunal under the Act. . . ." On appeal, in an opinion, the Workmen's Compensation Appeal Board (Board) noted Claimant's contention that the settlement on which Referee Stevenson's decision had been made was in violation of Section 407 of The Pennsylvania Workmen's Compensation Act, but ruled that the appeal be

[ 98 Pa. Commw. Page 492]

    sustained and the dismissal of the petition set aside; and that "the instant petition shall be deemed a petition to appeal nunc pro tunc," referring the matter back to a referee to determine whether or not there was "fraud, deception, coercion or duress, or its equivalent," such "as to prevent Claimant from filing a timely appeal." The Board's decision was filed on September 4, 1980. On the remand, Referee Stander, after a hearing, made recommendations to the Board including recommended findings of fact, conclusions of law and a recommended order, the order containing a recommendation that the existing petition, "treated as a Petition for Allowance to Appeal Nunc Pro Tunc, be dismissed for lack of proof of the necessary elements of fraud, deception, coercion, duress or its equivalent; and for failure to timely file his present petition." On appeal, the Board filed its opinion and order under date of November 29, 1984, accepted the findings of fact recommended by the referee stating that it was only concerned with the reasons for delay in taking the appeal with the following statement and order:

Claimant's counsel was notified by defendant on April 28, 1976 that the claimant had no valid claims against the company. We cannot find the delay of seven months after receiving that letter of the Reinstatement Petition to be a valid cause shown for allowing what we consider to be an appeal nunc pro tunc.


The Claimant's Reinstatement Petition is dismissed and the Appeal Nunc Pro Tunc is denied.

After a review of the voluminous record in this case, we conclude that the Board erred in disregarding Claimant's averment that the agreement and stipulation based thereon, with the decision of referee Stevenson

[ 98 Pa. Commw. Page 493]

    dated January 30, 1973, were all part of an illegal compromise of Claimant's workmen's compensation claim in violation of Section 407 of The Pennsylvania Workmen's Compensation Act, under which that stipulation and decision became null and void*fn3 and that, therefore, the Claimant is entitled to have his case considered and determined on the merits. In support of this view, we will detail briefly the circumstances of the agreement and the factual pattern establishing that the agreement, stipulation and decision of the referee were patently false and in violation of the terms of The Pennsylvania Workmen's Compensation Act and, as noted, totally null and void.

First of all, Claimant has continued to be disabled through almost all of the period since December 14, 1972, the date of the last hearing held before the stipulation and referee's decision of January 30, 1973. Claimant during these years has had at least ten admissions to hospitals and, as noted and as will appear, the record of testimony before us contains no support for the factual statements in the stipulation but, in fact, the only medical testimony in the case, that of Claimant's medical witness, the attending psychiatrist, and that of the Employer, attributes Claimant's psychiatric disability to his employment: Claimant's medical witness attributes Claimant's continuing disability entirely to the injury of

[ 98 Pa. Commw. Page 494]

December 18, 1970, while the Employer's psychiatrist attributes the Claimant's disability to his job in that it stems from Claimant's fear of being laid off.

It is necessary to recount in some detail certain of the procedural and other events which have influenced the course of the litigation that is now before us.

While we do not have the advantage of a record of what took place before Referee Stevenson prior to his decision of January 30, 1973, that decision does record that hearings were held on February 29, 1972, July 25, 1972, October 24, 1972 and "final hearing held on December 14, 1972, at which time the case was concluded pending submission of stipulation." Pursuant to the stipulation submitted to the referee, he filed the following:


Prior to scheduling a further hearing in this matter, the Referee was in receipt of the following written stipulation:


IT IS HEREBY STIPULATED AND AGREED by and between counsel for claimant and counsel for defendant, with the expressed understanding and agreement of the claimant that:*fn4

1. The alleged incident of 18 December 1970, set forth in claimant's petition for compensation, did not result in any disability or loss of earning power; any disability or loss of earning power that claimant may have suffered thereafter, was due purely to causes ...

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