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Washington v. Workers' Compensation Appeal Bd.

Commonwealth Court of Pennsylvania

March 4, 2015

Patrick Washington, Petitioner
v.
Workers' Compensation Appeal Board (National Freight Industries, Inc.), Respondent

Submitted January 2, 2015.

Page 215

Appealed from No. A12-1694. State Agency: Workers' Compensation Appeal Board.

Robert A. Huber, Philadelphia, for petitioner.

Jeffrey D. Snyder, Exton, for respondent.

BEFORE: HONORABLE RENÉ E COHN JUBELIRER, Judge, HONORABLE MARY HANNAH LEAVITT, Judge, HONORABLE JAMES GARDNER COLINS, Senior Judge. OPINION BY SENIOR JUDGE COLINS.

OPINION

Page 216

JAMES GARDNER COLINS, Senior Judge

Patrick Washington (Claimant) petitions for review of an order of the Workers' Compensation Appeal Board (Board) that affirmed the decision and order of a Workers' Compensation Judge (WCJ) denying his Claim Petition. We affirm.

From 2007 to February 13, 2011, Claimant was employed by National Freight Industries, Inc. (Employer) as a tractor trailer driver. (WCJ Decision Finding of Fact (F.F.) ¶ ¶ 1, 4; Claimant Ex. 1 Washington Dep. at 6-8, 34, Reproduced Record (R.R.) at 86a-88a, 114a.) In February 2009, Claimant was injured in an automobile accident unrelated to his work in which his car was rear-ended by another car. (WCJ Decision F.F. ¶ ¶ 4, 7; Claimant Ex. 1 Washington Dep. at 10-11, 53, R.R. at 90a-91a, 133a; Hearing Transcript (H.T.) at 6, R.R. at 50a.) Claimant missed seven days of work as a result of that accident, but then returned to work full duty. (WCJ Decision F.F. ¶ ¶ 4, 7; Claimant Ex. 1 Washington Dep. at 12-13, 38, R.R. at 92a-93a, 118a; H.T. at 6, R.R. at 50a.) Claimant experienced pain in his shoulders, arms and hands after his non-work accident and that pain worsened over time. (WCJ Decision F.F. ¶ ¶ 4, 7; Claimant Ex. 1 Washington Dep. at 11, 13-15, 35-41, 54-56, R.R. at 91a, 93a-95a, 115a-121a, 134a-136a; H.T. at 7-8, R.R. at 51a-52a.) On February 13, 2011 Claimant stopped working for Employer, contending that he was no longer able to do his job because of the pain. (WCJ Decision F.F. ¶ ¶ 4, 7; Claimant Ex. 1 Washington Dep. at 13, 24, 34, R.R. at 93a, 104a, 114a; H.T. at 8, R.R. at 52a.) Claimant filed suit against the other driver in the non-work accident, contending that he was no longer able to work as a result of his injuries in that accident. (Claimant Ex. 1 Washington Dep. at 10-11, 74-77, R.R. at 90a-91a, 154a-157a.)

On October 31, 2011, Claimant filed a Claim Petition seeking total disability benefits from February 14, 2011 onward and payment of medical bills under the Workers' Compensation Act (the Act),[1] asserting that he suffered " aggravation of neck, shoulders, arms, hands and bilateral carpal tunnel syndrome" as a result of repetitive motion, lifting and driving in his work. (Claim Petition ¶ ¶ 1, 4-5, 14, R.R. at 183a-184a; WCJ Decision F.F. ¶ 2.) The Claim Petition listed Employer's address as 72 West Park Avenue, Vineland, New Jersey, and the Claim Petition was mailed by the Bureau of Workers' Compensation (Bureau) on November 3, 2011 to Employer at that address. ( Id., R.R. at 183a; H.T. at 32-33, R.R. at 76a-77a.) Employer's address is not 72 West Park Avenue, Vineland, New Jersey, and is a different number address on the same street, 71 West

Page 217

Park Avenue, Vineland, New Jersey. (H.T. at 32-33, R.R. at 76a-77a; Answer to Claim Petition.) Employer filed an answer to the Claim Petition denying Claimant's allegations on December 16, 2011, 43 days after the Bureau mailed the Claim Petition. (H.T. at 32, R.R. at 76a; Answer to Claim Petition.) There is no evidence in the record as to when or how Employer received the Claim Petition or notice of its filing.

The WCJ held an evidentiary hearing on September 20, 2012 at which Claimant testified and also received testimony by trial deposition of Claimant and two medical witnesses. At the close of the hearing, the issue arose as to whether Employer was barred from disputing the factual allegations of the Claim Petition under Yellow Freight System, Inc. v. Workmen's Compensation Appeal Board (Madara), 56 Pa.Cmwlth. 1, 423 A.2d 1125 (Pa. Cmwlth. 1981), and Section 416 of the Act, 77 P.S. § 821, because its answer was not filed within 20 days of the mailing of the Claim Petition. Although no motion by Claimant to bar Employer appears in the record, Claimant asserted at the evidentiary hearing that he had raised this issue at an earlier hearing and that the issue had not been resolved. (H.T. at 32, R.R. at 76a.)[2] The WCJ stated that the Bureau mailed the Claim Petition to Employer on November 3, 2011 and it had not been returned by the postal authorities. ( Id. at 32-33, R.R. at 76a-77a.) In addition, the parties stipulated at the hearing that the address to which the Claim Petition was mailed was not Employer's address and was off by one number. ( Id. at 33, R.R. at 77a.) Claimant did not introduce any evidence at the hearing as to what is located at the 72 West Park Avenue address to which the Claim Petition was sent, and the WCJ gave the parties 60 days to ...


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