David A. Pennington, Swartz, Campbell & Detweiler, Philadelphia, for petitioner.
Samuel A. Scott, Macungie, for respondent.
Doyle and McGinley, JJ., and Barbieri, Senior Judge.
[ 130 Pa. Commw. Page 43]
Before this Court for review is an order of the Workmen's Compensation Appeal Board (Board), affirming an award of a referee to David C. Wagner (Claimant) dismissing a petition of UGI Corporation (UGI), Employer, for termination of benefits being paid to Claimant for disability resulting from a service-connected injury on October 29, 1985. On Employer's appeal, it also urges that the Board erred in failing to grant a rehearing requested in a letter to the referee after his decision had been rendered. We will affirm the Board.
Employer's principal contention is that a rehearing should have been granted by the Board, although no petition for rehearing had been filed with the referee or the Board. The only basis for Employer's request for a rehearing is contained in its appeal of the referee's action in dismissing its termination petition. This consists simply of a statement contained in the Employer's appeal papers as follows:
Furthermore, there has been after discovered evidence indicating that claimant's difficulties are not the result of the purported back injury, but are rather due to multiple sclerosis, a disease which is unrelated to his employment. This came to the attention of the defendant only after the Referee's Decision and Order was issued.
[ 130 Pa. Commw. Page 44]
A similar statement was contained in the appeal form filed by Employer "ALLEGING ERROR OF LAW." N.T. 230a. Employer filed no petition, nor any medical document to support the bald and conclusory statements contained in its appeal forms. In fact, the above-quoted statement does not suggest in any way what may be the source for this statement on which the request for a rehearing is based. In fact, there is not even an averment of a designated medical basis for the request.
The Board, in dismissing Employer's appeal on the merits, also denied the defendant's request to present additional evidence, stating:
We deny the Defendant's request to present after discovered evidence as the same may be presented in another Termination and/or Review Petition.
While we do not pass upon the validity of the Board's suggestion as to what petition forms the Employer may use to bring before the compensation authorities such after discovered evidence as may exist and be relevant, we certainly must agree that the lack of a petition is critical under the circumstances involved here; rather than the simple request to adduce certain evidence and without any support by affidavit or otherwise which would establish the relevance of the proposed evidence. We believe that Claimant was entitled to have properly supported averments and an opportunity to reply thereto.
In any event, there can be no question that the Board had discretion under the circumstances in this case to refuse the unsupported request for a rehearing. Such refusal would not be an abuse of discretion by the Board. Monaci v. Workmen's Compensation Appeal Board (Ward Trucking), 116 Pa. Commonwealth Ct. 172, 541 A.2d 60 (1988). In Monaci, a termination petition was involved concerning a work injury on April 25, 1978, seeking termination as of October 31, 1981. The referee granted the termination and the Board affirmed. The Board refused a ...