Appeal from the Order of the Workmen's Compensation Appeal Board, in the case of James Brasco, Jr. v. Gee Bee Furniture, No. A-87522.
Benjamin L. Costello, Yablonski, Costello & Leckie, for petitioner.
Gerald J. Yanity, Stewart, Belden and Belden, for respondent.
Judges Craig and Smith, and Senior Judge Narick, sitting as a panel of three. Opinion by Judge Smith.
[ 118 Pa. Commw. Page 565]
James Brasco (Claimant) appeals from a decision of the Workmen's Compensation Appeal Board which affirmed the referee's decision to dismiss Gee Bee Furniture's (Employer) petition for termination and reversed the referee's decision to assess a 10% penalty against Employer pursuant to Section 435 of The Pennsylvania Workmen's Compensation Act.*fn1 The issue presented for review*fn2 is whether the Board committed an error of law in reversing the referee's decision to assess a penalty against Employer.
Claimant was employed as a truck driver/warehouseman for Employer and performed duties including moving and lifting of heavy furniture. On July 7, 1980, Claimant suffered a work-related injury diagnosed as acute traumatic lumbar disc syndrome which rendered him disabled. Pursuant to notice of compensation payable, Claimant began receiving total disability benefits on July 15, 1980. On November 8, 1982, Employer filed a petition for termination based upon an affidavit of recovery and an automatic supersedeas was taken.*fn3 See Section 413 of the Act, 77 P.S. § 772.*fn4
[ 118 Pa. Commw. Page 566]
At a hearing before the referee on January 10, 1983, Claimant challenged the affidavit of recovery as being defective since Dr. Sherman, author of the affidavit, did not sign it before a notary. N.T., p. 7. Dr. Sherman admitted in his deposition that he did not execute the physician's affidavit in the presence of a notary but instead gave the unsigned report to a party from rehabilitation services to have it notarized. N.T., p. 14. Based upon the evidence, the referee found:
Finding of Fact No. 11. The referee concluded that a 10% penalty shall be imposed pursuant to Section 435.*fn5
[ 118 Pa. Commw. Page 567]
The Board reversed the referee because no evidence existed to show that the Employer violated the Act or rules of the Department of Labor or the Board. This Court disagrees. However, the Board correctly stated that a referee may not assess a penalty without a hearing on the issue, but failed to remand to the referee. Claimant, nonetheless, contends that the referee acted properly in assessing the penalty pursuant to Section 435. Before penalties may be imposed, it is well established that notice and a hearing must first be afforded the person involved in the noncompliance. Crangi Distributing Co. v. Workmen's Compensation Appeal Board, 17 Pa. Commonwealth Ct. 530, 333 A.2d 207 (1975).
Claimant asserts that Employer's due process rights have been adequately protected; that Employer was on constant notice of its failure to conform with the Act; that the issue was discussed at the January 10, 1983 hearing; and that the Employer had an opportunity to ...