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JOSEPH L. JOSEPH v. WORKMEN'S COMPENSATION APPEAL BOARD (06/26/89)

decided: June 26, 1989.

JOSEPH L. JOSEPH, JR.
v.
WORKMEN'S COMPENSATION APPEAL BOARD, (THE DELPHI COMPANY AND ROCKWOOD INSURANCE COMPANY, ROSS AND KENNEDY CORPORATION AND BITUMINOUS FIRE & MARINE INSURANCE COMPANY). APPEAL OF ROSS AND KENNEDY CORPORATION AND BITUMINOUS FIRE AND MARINE INSURANCE COMPANY



Appeal from the Order of the Commonwealth Court entered August 26, 1987, at Nos. 908 and 1047 C.D. 1986, vacating the Order of the Workmen's Compensation Appeal Board at No. A-89387 entered March 18, 1986. 108 Pa. Commw.Ct. 636, Nix, C.j., and Flaherty, McDermott, Zappala and Papadakos, JJ. Zappala, J., concurs in the result. Papadakos, J., files a dissenting opinion. Larsen, J., did not participate in the consideration or decision of this case.

Author: Flaherty

[ 522 Pa. Page 155]

OPINION OF THE COURT

This is an appeal, by allowance, from an order of the Commonwealth Court which vacated an order of the Workmen's Compensation Appeal Board (Board) and reinstated an order of a referee in connection with a claim of work-related injury filed by Joseph L. Joseph, Jr. (Claimant). Claimant was performing duties in the course of his employment

[ 522 Pa. Page 156]

    with the Delphi Company (Delphi), when, on July 9, 1981, he sustained an injury to his left knee. Delphi was a subcontractor performing work for a general contractor, Ross & Kennedy Corp. (R. & K.).

As a result of the injury, claim petitions were filed against Delphi, R. & K., and the workmen's compensation insurance carrier for Delphi, Rockwood Insurance Company (Rockwood). A referee determined that Claimant was entitled to compensation for total disability from the date of the injury until April 19, 1982, and that compensation for partial disability was payable from the latter date through January 12, 1984, i.e., the date of the referee's order. The referee also determined that the general contractor, R. & K., was liable for payment of Claimant's medical expenses, compensation, and costs. This was based upon a finding that the insurance policy procured by Delphi from Rockwood was not in effect at the time of the injury, and, thus, that R. & K. was the responsible statutory employer for purposes of compensation. Hence, Rockwood was discharged from all liability, and liability attached to the insurer for R. & K., Bituminous Fire & Marine Insurance Co. (Bituminous).

An appeal was taken by R. & K. to the Board, and R. & K. forwarded to the Board a letter from the referee which stated that the record had inadvertently and prematurely been closed prior to receipt of a memorandum of law from R. & K. regarding insurance issues involved in the case. The letter, addressed to counsel for R. & K. and Bituminous, stated the following:

I inadvertently closed the case without having receipt of your Memorandum of Law referable to the question of insurability.

I am writing this in order to establish a premature closure of the record in order that the Appeal Board is apprised that a previous enlargement of time existed for submission of a Memorandum from your office, and the record was closed by this office before receipt of said Memorandum.

[ 522 Pa. Page 157]

I regret that the above closure has inconvenienced your office.

In response to the appeal by R. & K., and the letter from the referee, the Board issued the following order:

In Reviewing this Record it would appear it was prematurely closed. The Board is in receipt of an affidavit of the Referee indicating he did not consider an issue in the case. We therefore Remand ...


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