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05/02/97 NANCY E. JOHNSON v. WORKERS' COMPENSATION

May 2, 1997

NANCY E. JOHNSON, PETITIONER
v.
WORKERS' COMPENSATION APPEAL BOARD (BUDD COMPANY), RESPONDENT



Appealed From No. A-97401. State Agency Workers' Compensation Appeal Board.

Before: Honorable Rochelle S. Friedman, Judge, Honorable Bonnie Brigance Leadbetter, Judge, Honorable Charles A. Lord, Senior Judge. Opinion BY Judge Friedman

The opinion of the court was delivered by: Friedman

OPINION BY JUDGE FRIEDMAN

FILED: May 2, 1997

Nancy E. Johnson (Claimant) appeals from an order of the Workers' Compensation Appeal Board (WCAB) affirming the decision of a Workers' Compensation Judge (WCJ) to reinstate Claimant's total disability benefits for the period from April 26, 1987 to June 30, 1987 and dismissing Claimant's nunc pro tunc appeal. We reverse and remand.

Claimant was employed by the Budd Company (Employer) when, on May 19, 1981, she sustained a work-related injury. Claimant received workers' compensation benefits for various periods of time and, eventually, returned to work in a light duty position. However, on April 26, 1985, *fn1 Claimant was laid off due to lack of work.

On July 14, 1986, Claimant filed a petition for reinstatement of benefits alleging that she returned to work with restrictions but, as of April 26, 1985, she was laid off from her employment. Employer filed a timely answer on July 31, 1986, and hearings were held before a WCJ.

Based on the evidence presented, the WCJ found that Claimant was laid off from her employment on April 26, 1987 with residual medical problems. Thus, on September 7, 1988, the WCJ issued a decision granting Claimant's reinstatement petition for a period beginning on April 26, 1987. Employer filed a timely appeal on October 3, 1988. *fn2

On April 13, 1989, oral argument was held on Employer's appeal before the WCAB. During oral argument, Claimant asked the WCAB to correct the typographical or clerical error in the WCJ's decision. (O.R., Claimant's letter of May 26, 1989.) On May 22, 1989, Employer withdrew its appeal. (O.R., WCAB docket entries.) By letter dated May 26, 1989, Claimant urged the WCAB to address the typographical or clerical error despite the withdrawal of Employer's appeal. (O.R., Claimant's letter of May 26, 1989.) In a letter dated May 31, 1989, Employer objected to Claimant's request because there was no longer an appeal before the WCAB. (O.R., Employer's letter of May 31, 1989.)

On June 9, 1989, Claimant filed an appeal nunc pro tunc with the WCAB challenging the WCJ's finding that Claimant was laid off from her employment on April 26, 1987. (R.R. at 6a-7a.) On June 28, 1989, when the WCAB issued an order acknowledging that Employer had withdrawn its appeal, a clerical worker at the WCAB erroneously believed that the withdrawal of Employer's appeal disposed of the entire case. *fn3

On December 14, 1993, the WCAB received a letter from Claimant inquiring about the Disposition of Claimant's nunc pro tunc appeal, which had not been withdrawn. (O.R., Claimant's letter of December 7, 1993.) Subsequently, the WCAB recognized its error and scheduled argument on Claimant's appeal. Following argument, the WCAB dismissed the appeal because Claimant failed to file the appeal within twenty days of the WCJ's decision and because Claimant was not entitled to an appeal nunc pro tunc.

On appeal to this court, *fn4 Claimant argues that the WCAB erred in failing to address the typographical or clerical error under section 413 of the Workers' Compensation Act (Act). *fn5 We agree.

As a preliminary matter, we note that the WCAB treated Claimant's appeal nunc pro tunc as such, rather than as a petition for modification under section 413 of the Act. We fail to understand why, for the sake of judicial economy, the WCAB did not simply treat the appeal as a petition for modification and remand the matter to the WCJ for correction of the erroneous date. *fn6 Under section 413 of the Act, a claimant may file a petition for modification to correct a material error in a ...


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