Izzi v. Workmen's Compensation Appeal Board

654 A.2d 176, 1995 Pa. Commw. LEXIS 41
CourtCommonwealth Court of Pennsylvania
DecidedJanuary 19, 1995
StatusPublished
Cited by10 cases

This text of 654 A.2d 176 (Izzi v. Workmen's Compensation Appeal Board) is published on Counsel Stack Legal Research, covering Commonwealth Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Izzi v. Workmen's Compensation Appeal Board, 654 A.2d 176, 1995 Pa. Commw. LEXIS 41 (Pa. Ct. App. 1995).

Opinions

SMITH, Judge.

John Izzi (Claimant) appeals from the October 1, 1993 order of the Workmen’s Compensation Appeal Board (Board) denying his petition seeking reconsideration of the Board’s June 2, 1993 order which affirmed the referee’s decision to deny his claim petition pursuant to the Workers’ Compensation Act (Act), Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1-1031. The issue before this Court is whether the Board erred in denying Claimant’s petition for reconsideration.1

I.

Claimant was employed as a pressman with Century Graphics (Employer) and filed a claim petition alleging that he was totally disabled as a result of injuring his lower back while lifting 300-400 pound boxes of paper at work on May 27, 1988. At hearings before Referee Inez G. Lundy, Claimant and a coworker testified concerning the work injury, and Claimant presented deposition testimony from his treating physician, John DeCarlo, M.D.; a board-certified orthopedic surgeon, Seymour Shloehik, M.D.; and a psychologist, Barry L. Kayes, Ph.D.

Dr. DeCarlo diagnosed Claimant as suffering a post-traumátic chronic lumbosacral strain and sprain with underlying osteoarthritis. He opined that Claimant is not capable of returning to work due to the work-related injury he suffered on May 27, 1988. Dr. Shloehik diagnosed Claimant’s condition as “acute sprain or a partial tearing of the musculoligamentous structures supporting the lumbosacral spine with principle [sic] involvement of the interspinous ligament between L5 and SI and the left sacrospinalis muscle.” He indicated that Claimant was unable to return to work as a pressman and that Claimant’s disability was caused by his work-related injury. Dr. Kayes testified that Claimant suffers psychological factors affecting his physical condition and opined that his emotional agitation and associated symptoms, combined with his lack of education, render him unemployable.

Employer presented the testimony of its president, Andy Kalman who testified, in part, that Claimant’s duties do not require him to lift heavy boxes, Claimant repeatedly requested lay-off status prior to the alleged work-related incident, and Claimant complained about back pain. Employer presented the deposition testimony of a board-certified orthopedic surgeon, Easwaran Bala, [178]*178M.D., and a psychiatrist, Wolfram Rieger, M.D. Dr. Bala testified that he examined Claimant on January 12, 1989 and determined that while Claimant sustained a lumbar strain, there was no objective evidence of any residual from the injury, noted that Claimant did not appear to be in pain, and opined that Claimant could return to work without restrictions. Dr. Rieger examined Claimant on December 19, 1990 and opined that Claimant did not sustain a psychiatric injury as a result of the work injury and could return to his prior job or other gainful employment without restriction or limitation.

Before a decision was rendered, Claimant’s counsel received notice that the case was being transferred to Referee Irvin Stander and that counsel could respond to the notice if Claimant objected to the transfer. Claimant did not object to the transfer of his case to Referee Stander. Thereafter, Referee Alexander Hamer Jr. issued a decision which found the testimony of Employer’s experts more credible than the testimony of Claimant’s experts, concluded that Claimant failed to meet his burden to establish that he sustained a work-related injrny, and denied the claim petition. On appeal to the Board, Claimant challenged the reassignment of his case to Referee Hamer and argued that the referee’s decision was not based upon substantial evidence and included errors of law. The Board determined that Referee Hamer’s decision was based upon substantial evidence, affirmed the referee’s order, and dismissed Claimant’s appeal.

Claimant filed a petition for reconsideration based upon the Board’s failure to consider Claimant’s argument that his case was improperly decided by Referee Hamer. Specifically, Claimant argued that he was not afforded notice that Referee Hamer was to decide the case nor an opportunity to object, and requested a remand for a hearing or a new decision.2 The Board noted that Claimant argued this point in his appeal from the referee’s decision, stated that it considered and rejected the argument, and denied Claimant’s petition for reconsideration.

In the instant appeal, Claimant argues that the Board erred in denying his petition for reconsideration because he suffered prejudice as a result of the failure of the Bureau of Workers’ Compensation to afford him an opportunity to object to the second reassignment. He contends that he would have objected had he been given an opportunity to do so because Referee Hamer was new and inexperienced, did not consider the substantial and extensive evidence as a whole, and did not award benefits as Referee Stander would have properly done. Claimant further argues that the Board erred in affirming the referee because his decision was not supported by substantial evidence in the record, the referee did not properly consider the evidence, and he failed to give greater validity to the testimony of Claimant’s treating physician.3

II.

The Board has broad discretion to grant a petition for rehearing pursuant to Section 426 of the Act, 77 P.S. § 871. Golovich v. Workmen’s Compensation Appeal [179]*179Board (Koenig, Inc.), 166 Pa.Commonwealth Ct. 190, 646 A.2d 75, appeal denied, — Pa. -, 652 A.2d 1327 (No. 433 M.D.Alloc.Dkt.1994, filed December 13, 1994); Chadwick v. Workmen’s Compensation Appeal Board (Benjamin Franklin Hotel), 132 Pa.Commonwealth Ct. 525, 573 A.2d 652, appeal denied, 527 Pa. 604, 589 A.2d 694 (1990). A Board’s decision to grant or deny a request for a rehearing will be reversed only when the Board has abused that discretion. Dominijinni v. Workmen’s Compensation Appeal Board (DeCarlo), 135 Pa.Commonwealth Ct. 204, 581 A.2d 245 (1990); Hawkey v. Workmen’s Compensation Appeal Board, 56 Pa.Commonwealth Ct. 379, 425 A.2d 40 (1981).

Nonetheless, the Board must grant rehearing to develop a full and complete record when justice requires. Cudo v. Hallstead Foundry, Inc., 517 Pa. 553, 539 A.2d 792 (1988). This Court has determined that the Board did not abuse its discretion in granting rehearing where a party has been denied an opportunity to present his or her case, General Woodcraft & Foundry v. Workmen’s Compensation Appeal Board, 13 Pa.Commonwealth Ct. 357, 318 A.2d 385 (1974); or to “correct a mistake of law or its misapprehension of an issue.” Babcock & Wilcox Constr. Co., Inc. v. St. John, 48 Pa.Commonwealth Ct. 1, 4, 408 A.2d 915, 916 (1979).

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Bluebook (online)
654 A.2d 176, 1995 Pa. Commw. LEXIS 41, Counsel Stack Legal Research, https://law.counselstack.com/opinion/izzi-v-workmens-compensation-appeal-board-pacommwct-1995.