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NORTH PHILADELPHIA AVIATION CENTER AND NATIONAL UNION FIRE INSURANCE COMPANY PITTSBURGH v. WORKMEN'S COMPENSATION APPEAL BOARD (REGAN) (12/12/88)

decided: December 12, 1988.

NORTH PHILADELPHIA AVIATION CENTER AND NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH, PETITIONERS
v.
WORKMEN'S COMPENSATION APPEAL BOARD (REGAN), RESPONDENTS. THERESA REGAN, PETITIONER V. WORKMEN'S COMPENSATION APPEAL BOARD (NORTH PHILADELPHIA AVIATION CENTER AND NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH), RESPONDENTS



Appeals from the Orders of the Workmen's Compensation Appeal Board, in the cases of North Philadelphia Aviation Center and National Union Fire Insurance Company of Pittsburgh v. Workmen's Compensation Appeal Board (Regan); Theresa Regan v. Workmen's Compensation Appeal Board (North Philadelphia Aviation Center and National Union Fire Insurance Company of Pittsburgh); North Philadelphia Aviation Center and National Union Fire Insurance Company of Pittsburgh v. Workmen's Compensation Appeal Board (Regan), and Theresa Regan v. Workmen's Compensation Appeal Board (North Philadelphia Aviation Center and National Union Fire Insurance Company of Pittsburgh).

COUNSEL

Joyce J. Sweinberg, for petitioner, Theresa Regan.

A. James Johnston, Post & Schell, P.C., for respondent, North Philadelphia Aviation Center and National Union Fire Insurance Company of Pittsburgh.

Judges Colins and Smith, and Senior Judge Kalish, sitting as a panel of three. Opinion by Judge Smith. Judge MacPhail did not participate in the decision in this case.

Author: Smith

[ 121 Pa. Commw. Page 635]

This matter arises from a petition and cross-petition for review taken by North Philadelphia Aviation Center (Employer) and its insurance carrier, National Union Fire Insurance Company of Pittsburgh, and Theresa Regan (Claimant), respectively, from the final amended order*fn1 of the Workmen's Compensation Appeal Board (Board) which reversed the referee's finding that Employer's contest was unreasonable, and directed that all attorney's fees be paid from Claimant's compensation pursuant to The Workmen's Compensation Act (Act).*fn2 The Board affirmed the referee in all other respects. The Board's final amended order is affirmed.

Claimant, a bookkeeper/secretary/receptionist for Employer, sustained work-related injuries to her head, neck, shoulders, and back on September 15, 1983 when the office trailer in which she worked was struck by a delivery van. Claimant received benefits pursuant to a notice of compensation payable until she executed a supplemental agreement that suspended benefits effective November 14, 1983. Shortly thereafter, Claimant was discharged and received unemployment compensation benefits from November 1983 to May 1984 when she acquired full-time employment as a mortgage clerk. Claimant worked until July 1984 at which time she ceased working on the advice of her treating physician. On August 30, 1984, Claimant filed a petition for reinstatement

[ 121 Pa. Commw. Page 636]

    of compensation, subsequently amended to a petition to review the supplemental agreement, alleging recurrence of total disability as of July 11, 1984. Claimant returned to her job as mortgage clerk on a part-time basis from December 1984 until January 1985 when her treating physician recommended that she undergo anterior cervical fusion. Claimant has been unable to resume any type of employment due to post-operative recuperation.

After several hearings, the referee granted Claimant's petition to review the supplemental agreement on the basis that Claimant executed the supplemental agreement under a mistake of fact. The referee also directed Employer to pay Claimant total disability indefinitely retroactive to November 14, 1983, plus interest at the rate of ten percent on all deferred compensation less a partial credit for income earned by Claimant; reasonable medical expenses, plus interest at the rate of ten percent on unpaid medical bills; Claimant's litigation expenses; a twenty percent penalty on outstanding medical bills; attorney's fees in the amount of twenty percent of all compensation payable pursuant to Section 440 of the Act, 77 P.S. ยง 996, for an unreasonable contest; and attorney's fees in the amount of twenty percent of the outstanding medical expenses. Employer appealed to the Board, which found Employer's contest to be reasonable, and accordingly, reversed the referee's decision insofar as it awarded attorney's fees of twenty percent of the outstanding medical expenses, but affirmed in all other respects. Employer thereafter petitioned this Court for review of the Board's order and Claimant cross-petitioned, both petitions being consolidated by order of this Court. In the interim, the Board issued an amended order dated October 9, 1987 directing that all attorney's fees be paid out of Claimant's compensation, and again, affirmed the referee's decision in

[ 121 Pa. Commw. Page 637]

    all other respects. Employer petitioned this Court for review of the Board's amended order and Claimant cross-petitioned.*fn3 Both petitions were consolidated by order of this Court.*fn4

Issues presented for review by Employer are whether substantial evidence supports the referee's finding that Claimant signed the subject supplemental agreement under a mistake of fact; and whether the referee erred as a matter of law in finding that Claimant was presumed to be totally disabled in view of the referee's failure to acknowledge or address Employer's evidence of job availability. ...


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