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07/09/97 EDWARD FLORIA v. WORKERS' COMPENSATION

July 9, 1997

EDWARD FLORIA, PETITIONER
v.
WORKERS' COMPENSATION APPEAL BOARD (GENERAL ELECTRIC), RESPONDENT



Appealed From No. A95-0897. State Agency Workers' Compensation Appeal Board.

Before: Honorable James Gardner Colins, President Judge, Honorable Bernard L. McGINLEY, Judge, Honorable Charles A. Lord, Senior Judge. Opinion BY Senior Judge Lord. Judge Leadbetter did not participate in the decision in this case.

The opinion of the court was delivered by: Lord

OPINION BY SENIOR JUDGE LORD

FILED: July 9, 1997

Edward Floria petitions this Court for review of a Workers' Compensation Appeal Board (Board) order that vacated a Workers' Compensation Judge's (WCJ) February 6, 1995 decision vacating his own decision, circulated January 30, 1995, dismissing Floria's claim petition. The Board reinstated the WCJ's earlier decision.

This appeal has its genesis in Floria's claim petition brought as a result of a work-related herniated disc he allegedly suffered in November 1991. Prior to his injury, Floria, who was over fifty-five years old and who had been employed with General Electric for over twenty-five years, was scheduled to participate in a job elimination program that included a benefits package. The last hearing in this matter occurred on November 9, 1994. The notes from this hearing were not transcribed. *fn1

On January 30, 1995, the WCJ circulated an opinion dismissing Floria's claim petition. Floria's counsel says that he received this decision on February 1, 1995, and he immediately wrote a letter to the WCJ reminding him of the extension which he had allegedly granted so that Floria could file proposed findings of fact and Conclusions of law within twenty days after he received the November 9, 1994 notes of testimony, which at that time merely appeared delayed. In this letter, Floria's counsel asked the WCJ to vacate his decision dismissing Floria's claim petition, so that Floria would have a chance to file proposed findings of fact and Conclusions of law, as purportedly agreed by the WCJ. *fn2

On February 6, 1995, the WCJ issued the following order.

AND NOW, TO WIT, this 6th day of February 6, 1995, the Circulated Decision of January 30, 1995, is hereby VACATED.

The Decision is being VACATED for further FINDINGS from Claimant's Counsel.

The employer then appealed from this order, and, on December 10, 1996, as previously set forth, the Board vacated this order and reinstated the WCJ's decision circulated January 30, 1995. In doing so, the Board stated in relevant part:

On February 27, 1995, the Defendant filed an appeal from the February 6, 1995 decision claiming same violated Rule 131.112 of the Special Rules of Administrative Practice and Procedure before Referees in that the parties never agreed in writing to such an amendment. We agree.[ *fn3 ],[ *fn4 ]

(Footnotes added).

On appeal here, we must now determine whether 34 Pa. Code ยง 131.112 [Correction or amendment of decision] precludes the WCJ from vacating his earlier decision by subsequent order. If ...


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