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12/31/97 LORRAINE GHEE v. WORKMEN'S COMPENSATION

December 31, 1997

LORRAINE GHEE, PETITIONER
v.
WORKMEN'S COMPENSATION APPEAL BOARD (UNIVERSITY OF PENNSYLVANIA), RESPONDENT



Appealed From No. A95-0813. State Agency, Workers' Compensation Appeal Board.

Reargument Granted on 12/2/96.

Before: Honorable James Gardner Colins, President Judge, Honorable Joseph T. Doyle, Judge, Honorable Doris A Smith, Judge, Honorable Rochelle S. Friedman, Judge, Honorable James R. Kelley, Judge, Honorable Jim Flaherty, Judge, Honorable Bonnie Brigance Leadbetter, Judge. Opinion BY Judge Flaherty. Judge Smith and Judge Leadbetter concur in the result only.

The opinion of the court was delivered by: Flaherty

OPINION BY JUDGE FLAHERTY

FILED: December 31, 1997

Lorraine Ghee (Claimant) petitions for review of the May 13, 1996, order of the Workers' Compensation Appeal Board (Board) *fn1 which affirmed a decision of a workers' compensation Judge (WCJ) who determined that, because Claimant failed to properly serve a copy of her claim petition on the University of Pennsylvania Hospital (Employer), Employer's late answer was valid, and Claimant was entitled to benefits only for a closed period. We affirm on other grounds.

Claimant was employed as a pharmacy technician for Employer. On February 18, 1993, Claimant filed a claim petition (petition) with the Department of Labor and Industry, Bureau of Workers' Compensation (Bureau), averring that on February 5, 1993, she sustained work-related head, leg and right shoulder injuries. The petition included the name and address of Employer and indicated that the insurance carrier was unknown. Claimant failed to serve a copy of the petition on Employer as required by 34 Pa. Code § 131.32(c). *fn2 The Bureau served Employer by mailing a copy of the petition and notice of assignment on March 5, 1993. *fn3 Employer, however, failed to file its answer to the petition until May 24, 1993, a period of eighty (80) days after the petition was served on it by the Bureau.

At the hearings before the WCJ, Claimant testified on her own behalf and presented the deposition testimony of her medical expert, Dr. Karpin. Employer presented testimony from its employees, which was offered to explain the reasons for the late filing of Employer's answer by describing Employer's internal mail delivery system, mailroom activities and the handling of worker's compensation claims. Employer also presented the deposition testimony of its medical expert, Stanley Askin, M.D., who examined Claimant on January 6, 1994, and found her to be in good health.

After reviewing the evidence the WCJ, rejecting the testimony of Employer's lay witnesses surrounding the reason for Employer's late answer, determined that Employer did not have an adequate excuse for its late answer. In his decision, however, the WCJ concluded that:

2. Claimant failed to comply with Rule 131.32(c) of the Worker's Compensation Code as it concerns service of a Petition, making Defendant's late Answer valid since Defendant was not properly served.

(WCJ's decision at p. 5.) The WCJ found credible the testimonies of Claimant and Dr. Karpin and, based upon these testimonies, awarded Claimant temporary total disability benefits from February 6, 1993 through December 2, 1993, and partial disability benefits beginning on December 3, 1993. The WCJ also found credible Dr. Askin's testimony that Claimant was in good health and, as such, ordered the termination of Claimant's benefits as of the date of Dr. Askin's examination on January 6, 1994.

Therefore, the WCJ concluded that:

3. Claimant has sustained her burden of proof that she suffered an injury while in the course and scope of her employment with Defendant and is entitled to temporary total disability from 2/6/93 to ...


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