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05/29/97 TERRY MANOLOVICH v. WORKERS' COMPENSATION

May 29, 1997

TERRY MANOLOVICH, PETITIONER
v.
WORKERS' COMPENSATION APPEAL BOARD (KAY JEWELERS, INC. AND ITT HARTFORD), RESPONDENTS



Appealed From No. A95-3758. State Agency Workers' Compensation Appeal Board.

Before: Honorable James Gardner Colins, President Judge, Honorable Jim Flaherty, Judge, Honorable Emil E. Narick, Senior Judge. Opinion BY Judge Flaherty.

The opinion of the court was delivered by: Flaherty

OPINION BY JUDGE FLAHERTY

FILED: May 29, 1997

Terry Manolovich (Claimant) petitions for review of an order from the Workers' Compensation Appeal Board (Board) reversing the decision of a Workers' Compensation Judge (WCJ) granting the claim petition (petition) filed by Claimant in a proceeding on remand from the Board pursuant to the Workers' Compensation Act (Act). *fn1 We reverse.

Claimant was employed by Kay Jewelers, Inc. (Employer) as a jewelry salesperson. On March 21, 1989, Claimant filed a petition alleging that she sustained a work-related injury as a result of standing long hours in high-heeled shoes as required by her job. The record reveals that the Department of Labor and Industry, Bureau of Workers' Compensation (Department) mailed a notice of "Assignment of Petition to Workers' Compensation Referee" to Employer on March 31, 1989. This notice lists Employer as the only adverse party with "no carrier." On April 6, 1989, the Pennsylvania Compensation Rating Bureau (Rating Bureau) certified to the WCJ in the instant case that a search of the Rating Bureau's files failed to disclose that Employer was carrying any Workers' Compensation insurance. Although the record is unclear as to whether Employer's carrier, Twin City Fire Insurance Company/Hartford Insurance Group (Hartford), received a copy of the original petition, the WCJ received a note from Hartford's Lancaster office, dated April 14, 1989, that was attached to the blank answer form sent with the notice. This note states that "this [Lancaster] office does not handle WC [Workers' Compensation] for Allegheny Ct [County] nor can we verify Hartford coverage for employer." (Finding No. 9, WCJ's Opinion, dated May 5, 1994).

A hearing was held on May 15, 1989, at which only Claimant was present. On May 25, 1989, the Department sent another notice of assignment to the parties. (Original Record, Notice of Assignment, dated May 25, 1989). The list of the parties on this notice of assignment includes Claimant, Employer, and Twin City. This document noted an insurance correction and listed Twin City Fire Insurance Company as Employer's insurance carrier. By decision and order, dated May 25, 1989, the WCJ granted the petition. The WCJ found that Employer failed to file an answer and failed to appear at the hearing after due notice of the hearing was sent. The WCJ also found that such notice was not returned by the United States Postal Service marked "undelivered."

On June 22, 1989, Employer mailed its notice of appeal to the Board. On June 29, 1989, Claimant filed a motion to quash the appeal arguing that Employer failed to appeal the WCJ's decision within twenty days. Employer's response to Claimant's motion to quash admitted that it filed its appeal twenty-seven days after the circulation date of the WCJ's opinion and order. Without ruling on Claimant's motion to quash, the Board concluded that Employer's failure to file a timely answer or appear at the hearing was adequately excused because Employer's insurance carrier did not receive a copy of the petition. By order dated March 17, 1992, the Board vacated the WCJ's decision and remanded the case to the WCJ to allow the Employer and Hartford to present evidence. The Board concluded that the "failure of the Defendant/Carrier to receive the petition duly mailed to Defendant/Employer, is an adequate excuse for failure to file a timely answer or appear at a hearing." (Board's Opinion, dated March 17, 1992, at 3). Following a second proceeding on remand, the WCJ again awarded benefits to Claimant which the Board thereafter reversed.

I

On appeal, Claimant argues that the Board erred when it permitted the Employer and its carrier to present evidence because they failed to file a timely answer to the petition and appear at the hearing. *fn2

Section 414 of the Act provides, in relevant part, the following:

The department shall serve upon each adverse party a copy of the petition, together with a notice that such petition will be heard by the referee to whom it has been assigned (giving his name and address) as the case may be, and shall mail the original petition to such referee, together with copies of the notices served upon the adverse parties.

Section 414 of the Act, 77 P.S. § 775. The definition of the term "party" in the Department's implementing regulations include "[a] claimant, defendant, employer, insurance carrier, additional defendant and, if relevant, the Commonwealth." 34 Pa. Code § 131.5. Therefore, Hartford, as the insurance carrier, is a party adverse to Claimant, and the Department was required to serve Hartford with a copy of the petition and notice of assignment to the WCJ.

Having determined that Hartford is an adverse party entitled to service by the Department, Section ...


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