Daniel K. Deardorff, Esq., MARTSON, DEARDORFF, WILLIAMS & OTTO, for Petitioner.
Dale E. Anstine, Esq., John M. Sofilka, Esq., for Respondent.
Honorable John A. MacPhail, Judge, Honorable Madaline Palladino, Judge, Honorable Alexander F. Barbieri, Senior Judge.
Opinion BY JUDGE MacPHAIL
Catalytic, Inc. (Petitioner) appeals an order of the Pennsylvania Workmen's Compensation Appeal Board (Board) modifying a referee's decision to dismiss Claimant Thomas N. Gwin's workmen's compensation claim with prejudice. We affirm the Board's order to dismiss the claim without prejudice.
Claimant filed a workmen's compensation claim against the Petitioner for the specific loss of hearing in his left ear resulting from a July 1, 1980 on-the-job accident. He had, however, a history of hearing problems including an operation on the same ear in 1978 or 1979. Deposition testimony of Claimant's medical witness indicated that it was "possible" that the accident led to the hearing loss.
When Claimant failed to appear at a scheduled hearing before the workmen's compensation referee, his attorney suggested that the claim be dismissed with prejudice for failure to prosecute. Petitioner's counsel agreed, adding that the dismissal should be on the merits as well because the claim was invalid. The referee agreed with the Petitioner and dismissed Claimant's petition with prejudice.
Claimant appealed the referee's decision to the Board which rendered the following order on October 11, 1985: "The Referee's Decision in this case is amended to delete the words 'with prejudice.' We see no reason why any party can't withdraw a petition prior to a final decision of the Referee on the merits. There was no decision on the merits here." Petitioner subsequently filed a Petition for Review with this Court.
Keeping in mind the scope of this Court's review in workmen's compensation cases,*fn1 the only issue we need address is whether the Board erred as a matter of law in amending the referee's decision and dismissing Claimant's case without prejudice. Based on our reading of the Pennsylvania Supreme Court's decision in Bigley v. Unity Auto Parts, Inc, 496 Pa. 262, 436 A.2d 1172 (1981), we agree with the Board and Claimant that because there was no decision on the merits, the instant claim should be dismissed without prejudice and therefore find no error in the Board's order.
In Bigley, a workmen's compensation claimant withdrew his claim petition and later filed to reinstate the claim under representation of new counsel. The referee dismissed the reinstatement petition apparently on the basis of the employer's arguments that the original petition was res judicata as it had never been appealed and that the petition for reinstatement was untimely. The Board affirmed. Our Supreme Court, reversing this Court's affirmance of the Board's order, held that the withdrawn claim petition could be reinstated. In so holding the Court stated:
[W]e are of the view that there is an implied authority at the administrative level to accept a unilateral request of withdrawal by the party presenting the claim prior to adjudication or agreement. . . . Concomitant with the implied power to permit a withdrawal prior to adjudication or agreement is also the power to reinstate that claim in appropriate circumstances.
496 Pa. at 272, 436 at 1177. Further, the power to reinstate a unilaterally withdrawn claim "should be liberally exercised absent a significant showing of prejudice by the other parties involved." Id. at 272, 436 A.2d at 1178. See also Powell v. Workmen's ...