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GERI KAMINSKI v. WORKMEN'S COMPENSATION APPEAL BOARD ( DOBBS HOUSE (03/18/88)

decided: March 18, 1988.

GERI KAMINSKI, PETITIONER
v.
WORKMEN'S COMPENSATION APPEAL BOARD (THE DOBBS HOUSE, INC.), RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board, in the case of Geri V. Kaminski v. Dobbs House, Inc., No. A-90234.

COUNSEL

Lucinda M. Kine, for petitioner.

Margaret E. Harvey, Thompson and Pennell, for respondent.

President Judge Crumlish, Jr., and Judges Barry and Colins, sitting as a panel of three. Opinion by Judge Colins. Dissenting Opinion by Judge Barry.

Author: Colins

[ 114 Pa. Commw. Page 486]

Geri Kaminski (claimant) petitions for review of an order of the Workmen's Compensation Appeal Board (Board) which affirmed a referee's decision dismissing claimant's Petition to Set Aside Final Receipt pursuant to Section 434 of The Pennsylvania Workmen's Compensation Act (Act).*fn1

Claimant injured her back on March 28, 1983 when she slipped and fell to the floor during the course of her employment at Dobbs House, Inc. (employer). Claimant missed work from April 9, 1983 until June 3, 1983. She received compensation for the weeks of work missed as a result of the injury. On or about June 10, 1983, claimant signed a final receipt terminating her employer's liability and continued to work until July 4, 1983. Thereafter, she filed a Claim Petition which was later amended to a Petition to Set Aside Final Receipt.

Several hearings were held at which the claimant and the employer presented testimony. The referee also considered the deposition testimony of several physicians who had examined the claimant subsequent to her signing of the final receipt. He found the testimony of one Dr. Shatouhy to be most credible and worthy of belief. He found that the claimant was completely recovered and that she was able to do work without restriction. He concluded that there was not adequate proof to show that any disability that the claimant alleged after she signed the final receipt was connected to the work-related injury. Consequently, the referee dismissed the Claim Petition and the Board affirmed this dismissal in its Opinion of March 12, 1987.

The claimant filed a Petition for Review with this Court on April 10, 1987. In response, the employer filed a Motion to Quash the appeal, wherein it contended

[ 114 Pa. Commw. Page 487]

    that the referee's decision and the subsequent affirmance by the Board were based upon competent evidence and were in compliance with the law. It further contended that the averments contained in the Petition for Review and the reports attached thereto were hearsay in nature and, therefore, outside the scope of reviewable material before this Court. The claimant filed an Answer to the Motion to Quash. This Court by Order dated May 11, 1987, ordered that the motion be listed for argument at the same time as argument on the merits and that the parties, either in their briefs on the merits or in separate briefs, were to separately address the issues raised by the Motion to Quash.

Preliminarily, we dispose of the Motion to Quash. The employer based the motion upon the fact that the claimant attached to her Petition for Review documents which were not of record before the referee or the Board. However, we note that these documents were not attached to the petition for the purpose of introducing them into the record to be considered by this Court. Instead, they were attached in connection with a request issued by the claimant for a remand for the introduction of after-discovered evidence.*fn2 The grounds alleged in the motion do not require that we quash the Petition for Review, but only that we strike the documents attached thereto.

There is no question that where an appellate court is petitioned to review an administrative agency decision, it is precluded from considering matters not made part of the record before the administrative agency. See Miller v. Department of Public Welfare, 99 Pa. Commonwealth Ct. 392, 513 A.2d 569 ...


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