Larocca v. Workmen's Compensation Appeal Board

592 A.2d 757, 140 Pa. Commw. 192, 1991 Pa. Commw. LEXIS 310

• Court: Commonwealth Court of Pennsylvania
• Decided: May 31, 1991
• Docket: 254 C.D. 1990
• Status: Published

Opinions

KELLEY, Judge.

Margaret Larocca (claimant) appeals an order of the Workmen’s Compensation Appeal Board affirming a decision of a referee which granted the termination petition of The Pittsburgh Press (employer) and denied claimant’s petition for total disability.

Claimant suffered a work-related aggravation of preexisting cervical degenerative arthritis on September 3, 1981, and began to receive partial disability benefits. These benefits were suspended by a referee’s order of July 5, 1983, based on a finding that claimant continued to work without a loss in earnings. On December 28,1987, claimant filed a petition for review asserting that, as of November 25, 1987, her disability had become total. Employer filed a termination petition, alleging that claimant had fully recovered from the September 3, 1981 injury and requesting that the suspension be lifted and benefits terminated.

A hearing on both petitions was held, and the referee, accepting the testimony of employer’s medical expert, dismissed claimant’s petition for total disability and granted employer’s termination petition in an order dated March 22, 1989. Claimant appealed to the board which affirmed the referee’s order on December 7, 1989.

Claimant, proceeding pro se, then attempted to appeal the board’s decision. In a letter to this Court dated December 30, 1989, she explained that she was unfamiliar with how to handle the appeal, and had received no assistance from workmen’s compensation offices, either in Pittsburgh or Harrisburg. She tried unsuccessfully to contact the Court by phone, and eventually resorted to calling the Governor’s Hot Line, who referred her to the Court’s filing office. The letter, date stamped January 4, 1990, requested “the necessary forms and information needed ... to file an appeal before the Commonwealth Court.”

The chief clerk responded by letter dated January 5, 1990 and pursuant to Section 211 of this Court’s Internal Operating Procedures, 210 Pa.Code § 67.13, which states:

Petition for Review — Clarification.

Upon receipt by the chief clerk from a pro se party of a written communication which evidences an intention to appeal, the chief clerk shall timestamp the writing with the date of receipt. The chief clerk shall advise the party by letter:

(1) As to the procedures necessary to perfect the appeal.

(2) That the date of receipt of the pro se communication will be preserved as the date of filing of the appeal, on condition that the party files a proper petition for review within 30 days of the date of the letter from the chief clerk. If the party fails to file a proper petition for review within that period, the chief clerk shall advise the party by letter that the court will take no further action in the matter.

Claimant, now represented by counsel, filed her petition for review on February 5, 1990. Employer responded with a motion to quash the appeal, arguing that § 211 has the effect of enlarging the time for appeal, which is expressly prohibited by Pa.R.A.P. 105(b) and inconsistent with Pa. R.A.P. 1512.

RECONSIDERATION OF ORDER OF SINGLE JUDGE

Before considering the merits of employer’s timeliness claim, however, we must first decide whether the issue is properly before us.

Employer’s motion to quash was denied on May 21, 1990, by order of Senior Judge Lehman. Employer did not seek reconsideration of that order, but instead proceeded to brief and argue the issue before an en banc panel of this Court, along with the merits of the case. We have held that:

It is a general rule that it is improper for a trial judge, absent new evidence, to overrule an interlocutory order by another judge of the same court in the same case. Commonwealth v. Tyson, 57 Pa.Commonwealth Ct. 569, 427 A.2d 283 (1981). We adopt the same rule with regard to pre-argument applications filed with this Court. In the interest of judicial economy and efficiency there must be a degree of finality to determinations on pre-argument motions. See Commonwealth v. Eck, 272 Pa.Superior Ct. 406, 416 A.2d 520 (1979).

Vitale v. Zoning Hearing Board of Upper Darby Township, 63 Pa.Commonwealth Ct. 604, 607, 438 A.2d 1016, 1018 (1982).¹

This doctrine, known as the “law of the case,” has been discussed by our Supreme Court, which has stated that:

The rule of the “law of the case” is one largely of convenience and public policy, both of which are served by stability in judicial decisions, and it must be accommodated to the needs of justice by the discriminating exercise of judicial power. Thus ... where a prior decision is palpably erroneous, it is competent for the court, not as a matter of right but of grace, to correct it upon a second review where no wrong or injustice will result thereby....

Reamer’s Estate, 331 Pa. 117, 122-23, 200 A. 35, 37 (1938).

We do not view Judge Lehman’s order as being “palpably erroneous,” and intend to adhere to the policy announced in Vitale. Pa.R.A.P. 123(e) provides that a single judge of an appellate court may “grant or deny any request for relief which under these rules may properly be sought by application____” It further provides that “[t]he action of a single judge may be reviewed by the court.” (Emphasis added.) We have provided a mechanism for this review by means of a petition for reconsideration. See Internal Operating Procedures, § 331, 210 Pa.Code § 67.47. When, as here, no petition for reconsideration from an order of a single judge has been filed, that order will normally be considered binding. Due to the importance of the issue involved here, however, we feel that the interest of judicial economy would be best served by squarely addressing it, despite the procedural irregularity.

VALIDITY OF INTERNAL OPERATING PROCEDURES, SECTION 211

Employer contends that this Court is without jurisdiction to consider this appeal, arguing that a timely petition for review was not filed, and the time for filing a petition for review is jurisdictional. Section 211, it is contended, is invalid because it operates to impermissibly extend the time for appeal.

The Internal Operating Procedures, including § 211, were adopted by the Commonwealth Court pursuant to its rule making authority expressed in Pa.R.A.P. 104. This authority is not unlimited. Specifically, the Court is prohibited from making any rule enlarging the time for filing a notice of appeal, a petition for allowance of appeal, a petition for permission to appeal, or a petition for review. Pa.R.A.P. 105(b). A petition for review from an appealable quasijudicial order must be filed within 30 days after the entry of the order. Pa.R.A.P. 1512(a)(1).

Employer points out that claimant’s pro se communication cannot be treated as a petition for review, since it does not contain the elements specified in Pa.R.A.P. 1513. These include a general statement of the objections to the order, or other determination sought to be reviewed, and a short statement of the relief sought. Because claimant’s pro se communication did not contain these elements, employer maintains that it cannot be treated as a petition for review and, since no proper petition for review was filed within the 30-day period, the case must be dismissed.

Claimant argues that the pro se communication “substantially complied” with Pa.R.A.P. 1513 by including all of the other elements required, including identification of the agency appealed from, the date of the decision and order, the order itself, the parties as they stood upon the record below, and the docket number of the decision and order from which the appeal was taken. We cannot agree. The statement of objections to the governmental determination has been held to constitute the “heart” of the petition for review, and, without it, no issue has been preserved for appellate review. See Hawkey v. Workmen’s Compensation Appeal Board, 56 Pa.Commonwealth Ct. 379, 425 A.2d 40 (1981).

This finding, however, does not end the inquiry. Section 211 provides that a written communication by a pro se party, which evidences an intention to appeal, will suffice to preserve the date of filing, provided that a proper petition for review is filed within 30 days of the date of the letter from the chief clerk. It is this provision which we must examine to determine whether it violates Pa.R.A.P. 105(b).

We begin by noting that the prohibition against the enlargement of time found in Pa.R.A.P. 105(b) applies to four distinct situations. Two of these, a petition for allowance of appeal and a petition for permission to appeal, are by their very nature discretionary, and strict limitations on both the time for appeal and the requisite contents of the documents filed do not deprive the appellant of any right.

Rule 105(b) also applies to a notice of appeal and a petition for review, both involving appeals as of right, and thereby implicating constitutional protections.² Our courts have strictly construed Rule 105(b) as it applies to a notice of appeal, holding that if the notice is not filed within the thirty-day period, the appeal is untimely and must be quashed. See, e.g., Commonwealth v. Riebow, 299 Pa.Superior Ct. 458, 445 A.2d 1219 (1982); State Farm Mutual Insurance v. Schultz, 281 Pa.Superior Ct. 212, 421 A.2d 1224 (1980).

These cases, however, are distinguishable from the situation before us. When nothing evidencing an intent to appeal is filed within the statutory period, the appeal is not timely and must be quashed, absent a showing of circumstances meriting grant of an appeal nunc pro tunc. Here, however, claimant did communicate an intention to appeal within 30 days. A notice of appeal amounts to little more than evidence of an intent to appeal, yet that is sufficient to perfect an appeal under Pa.R.A.P. 902 and 903.³ The note to Rule 902 states that one advantage of the procedure is that it necessarily eliminates the “trap” of failure to perfect an appeal, since the notice of appeal is self-perfecting.

While appeals from adjudications of an administrative agency are also as of right, the procedural mechanism is not self-perfecting. The required elements of a petition for review, although not exceedingly technical, are still considerably more burdensome than those for a notice of appeal. Unfortunately, notices of decisions from administrative agencies are often woefully lacking in explaining the procedure for appeal.⁴ It is this “trap” that § 211 seeks to eliminate or at least mitigate for pro se appellants.

We also believe that § 211 is grounded in the appellate rules. Pa.R.A.P. 1503 provides that:

If an appeal is taken from an order of a government unit, or if a complaint in the nature of equity, replevin, mandamus, or quo warranto, or a petition for a declaratory judgment or for a writ in the nature of certiorari or prohibition is filed against a government unit ... this alone shall not be a ground for dismissal, but the papers whereon the improvident matter was commenced shall be regarded and acted upon as a petition for review of such governmental determination and as if filed at the time the improvident matter was commenced. The court may require that the papers be clarified by amendment.

“Appeal” is defined as “[a]ny petition or other application to a court for review of subordinate governmental determinations.” 42 Pa.C.S. § 102. We have no problem construing claimant’s pro se communication as an “appeal.”⁵ By doing so, Pa.R.A.P. 1503 clearly allows it to be regarded as a petition for review, provided that it is clarified by amendment to include the essential elements of a petition for review. Section 211 accomplishes precisely that purpose.

In an appeal from a finding of civil contempt by the supervising judge of a statewide grand jury, appellant erroneously filed a notice of appeal instead of a petition for review, as provided by Rules 1511 and 1512, which provide that a petition for review must be filed within 10 days after the entry of the order. In re Fourth Statewide Investigating Grand Jury, 510 Pa. 496, 509 A.2d 1260 (1986). While the Supreme Court held that the appeal was untimely because the notice of appeal was not filed within 10 days, the Court also noted that “[r]ule 1503, Pa.R.A.P. allows appellant’s erroneously filed notice of appeal to be treated as a petition for review.” Id., 510 Pa. at 500, n. 3, 509 A.2d at 1261, n. 3.

We also believe that § 211 comports with the intent of the rules. Our Supreme Court has consistently held that “[t]he Rules of Appellate Procedure were adopted to insure the orderly and efficient administration of justice at the appellate level. They were not intended, however, to be so rigidly applied as to result in manifest injustice, particularly when there has been substantial compliance and no prejudice.” Stout v. Universal Underwriters Insurance Company, 491 Pa. 601, 605, 421 A.2d 1047, 1049 (1980).

This liberal construction is especially mandated when applied to a remedial law such as The Pennsylvania Workmen’s Compensation Act. See Crucible Steel Co. of America v. Workmen’s Compensation Appeal Board, 9 Pa.Commonwealth Ct. 269, 306 A.2d 395 (1973). When an act is remedial, “its benefits and objectives shall not be frittered away by slavish adherence to technical and artificial rules.” Unemployment Compensation Board of Review v. Jolliffe, 474 Pa. 584, 379 A.2d 109 (1977) (quoting Baigis Unemployment Compensation Case, 160 Pa.Superior Ct. 379, 51 A.2d 518 (1947)). As the Superior Court stated in Baigis, we must be “always on guard lest justice be denied by allowing hollow form to govern solid substance____” Baigis, 160 Pa.Superior Ct. at 384, 51 A.2d at . To invalidate § 211 would result in just such a triumph of form over substance, a result which we are not prepared to sanction.

MERITS OF THE CLAIM

Having determined that claimant is entitled to her day in court, we must now proceed to the merits of her appeal. Claimant attacks both the dismissal of her petition for total disability and the grant of employer’s termination petition. She contends that the dismissal was unsupported by substantial competent evidence, since the referee did not give reasons for rejecting the testimony of her medical experts, which she alleges were more qualified than employer’s experts.

The referee found that claimant was not disabled, thereby denying both her petition for disability and granting employer’s termination petition. In making this finding, the referee made the following relevant findings of fact:

7. Claimant has failed to prove by any credible evidence that she has been unable to perform her regular work after November 25, 1987; that her original injury or disability recurred at any relevant time; that her prior, noncompensable disability increased at any relevant time; or that she sustained a loss of earnings or earning power as a result of her work-injury.

8. Her first visit to Dr. D.J. Marraccini, Jr., D.C., was on September 21, 1987, and to Dr. A.D. Kranik, M.D., November 24, 1987. They had no prior records of her care or treatment, nor did either have any X rays predating September 3, 1981. Dr. Kranik read Dr. Marraccini’s X Rays and took none of his own. They relied primarily on claimant’s histories and complaints.

9. Their exams and care of claimant were too remote in time from her work-injury.

10. None of the claimant’s evidence is credible, and all of it is rejected.

11. Although claimant never sustained any kind of work-related back (excluding the cervical spine) injury, those two doctors were not only treating her back but were also trying to relate her back complaints to her September 3, 1981 injury.

12. The medical experts’ testimonies for employer are credible and given much probative value.

13. It is reasonably inferred that when claimant stopped working, she was not only fully able to perform her regular work, but she was also fully recovered from her injury. It is also inferred that she fully recovered long before she stopped working.

14. In any event, she fully recovered from her injury no later than December 4, 1987; and all of her disability terminated by no later than December 4, 1987.

15. She has been, and continues to be, fully able to do all of the duties of her regular work.

Our scope of review is whether there has been a violation of rights, error of law, or whether necessary facts are supported by substantial evidence. Estate of McGovern v. State Employees’ Retirement Board, 512 Pa. 377, 517 A.2d 523 (1986). It is well established that the referee may accept the medical opinion of one expert witness over that of another. Bruckner v. Workmen’s Compensation Appeal Board (Lancaster Area Vo-Tech), 104 Pa. Commonwealth Ct. 290, 521 A.2d 980 (1987). Furthermore, the referee is not required to give reasons for finding one expert’s medical opinion to be more credible than another’s. Cooper Energy Services v. Workmen’s Compensation Appeal Board (Toth), 113 Pa.Commonwealth Ct. 144, 536 A.2d 519, petition for allowance of appeal denied, 520 Pa. 584, 549 A.2d 916 (1988).

The referee specifically found claimant’s experts to be not credible. Employer’s experts, on the other hand, testified unequivocally that claimant had fully recovered from her work-related injury, and that she was capable of performing her work. The party seeking termination of workmen’s compensation benefits has the burden of proving that all disability related to a compensable injury has ceased and that, if a claimant is currently disabled, the petitioner must show a lack of causal relationship between that disability and the compensable injury. Unity Builders, Inc. v. Workmen’s Compensation Appeal Board, 50 Pa.Commonwealth Ct. 527, 413 A.2d 40 (1980).

Dr. Yanchus testified unequivocally that as of December 4, 1987, claimant had completely recovered from her September 1981 injury.⁶ He further opined within a reasonable degree of medical certainty that claimant was physically capable of performing her job.⁷ Dr. Durning also testified that, in his opinion, claimant could return to her job.⁸ This unequivocal testimony is substantial evidence to support the referee’s finding that employer has met its burden regarding termination.

Claimant also argues, however, that since the referee granted the termination petition as of December 4, 1987, and claimant’s last day of work was November 25, 1987, she is entitled to benefits for the intervening period. When seeking to lift a suspension, claimant need only establish continuing disability and recurrence of loss of earnings resulting from a work-related injury. Christopher v. Workmen’s Compensation Appeal Board (Dravo Corp.), 124 Pa.Commonwealth Ct. 562, 556 A.2d 544 (1989). A presumption of partial disability exists by virtue of the suspension order. Id. Thus, claimant need only show that her loss of earnings resulted from a work-related injury. The referee’s Finding of Fact No. 7 expressly found that claimant had not so shown. Since this finding is also supported by substantial evidence, we cannot disturb it.

Accordingly, having found no error of law and that all relevant findings of fact are supported by substantial evidence, the decision of the board is affirmed.

ORDER

NOW, this 31st day of May, 1991, the order of the Workmen’s Compensation Appeal Board, No. A89-786, dated December 7, 1989, is affirmed.

1 . We have approved this practice even in a case involving a jurisdictional issue. City of Reading v. Templin, 88 Pa.Commonwealth Ct. 267, 269, n. 3, 489 A.2d 272, 273, n. 3 (1985).

2 . Pa. Const., art. V, § 9.

3 . We have held that a defective notice of appeal, if timely filed, does not render the appeal invalid. Department of Transportation v. Florek, 71 Pa.Commonwealth Ct. 615, 455 A.2d 1263 (1983).

4 . The opinion of the board sent to claimant in this case stated: “[e]nclosed is a copy of an Opinion from the Workmen’s Compensation Appeal Board filed this date in the above-mentioned case. The decision of the Board is final unless an appeal is taken to the appropriate court within thirty (30) days of the above mailing date.”

5 . While claimant’s communication here contained sufficient information to be treated as a notice of appeal, we recognize that not all pro se communications received by this Court would so qualify. When a communication is so deficient that it fails to mention necessary information such as the name of the agency appealed from and the number and date of the order appealed, even § 211 might not operate to save it.

6 . Deposition of Robert M. Yanchus, M.D., at 21.

7 . Id. at 20.

8 . Deposition of Robert P. Durning, M.D., at 27.