Izzi v. Workmen's Compensation Appeal Board

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] M.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] Board (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). Further, the Bureau is authorized to substitute one referee for another in a workers’ compensation proceeding pursuant to Section 415 of the Act, 77 P.S. § 851. See Arena v. Packaging Sys. Corp., 510 Pa. 34, 507 A.2d 18 (1986). However, according to Bureau rules, it must provide notice and an opportunity for the parties to object before a reassignment can occur. 34 Pa.Code § 131.22 provides: (a) If the transfer of the case is agreed to by the Bureau, the parties and the referee, the Bureau will promptly reassign the case or petition. Notice of reassignment will be given to all parties. (b) transfer or reassignment under subsection (a) will take place prior to the date of the first hearing unless circumstances dictate otherwise. In Biagini v. Workmen’s Compensation Appeal Board (Merit Contracting Co.), 158 Pa.Commonwealth Ct. 648, 632 A.2d 956 (1993), this Court avoided the issue of whether a claimant’s due process rights to a fair hearing were violated when the Bureau fails to notify parties of the substitution of a fact-finding referee and to provide the parties an opportunity to object. The Court instead determined that the claimant did not preserve the issue for consideration on appeal because he failed in his appeal to the Board to set forth the basis for a constitutional, statutory or regulatory violation and failed in his appeal to this Court to state in what manner his due process rights were diminished. In the matter sub judice, the Bureau notified Claimant’s counsel that his petition was being reassigned from Referee Lundy to Referee Stander and afforded Claimant an opportunity to respond if he had an objection to that reassignment. The Bureau’s act of providing notice and an opportunity to object to this reassignment demonstrates that the Bureau recognized its duty to provide notice of reassignment and an opportunity for objection and belies any argument that the Bureau’s rules do not require such action. Moreover, unlike the facts in Biagini, the Board acknowledged in its decision to deny rehearing that Claimant requested a remand and raised at oral argument the issue of the Bureau’s failure to notify Claimant of the second reassignment and to provide an opportunity to object to that substitution. See also Wilder v. Jones & Laughlin Steel Corp., 8 Pa.Commonwealth Ct. 505, 303 A.2d 537 (1973) (citing Bogowich v. State Workmen’s Insurance Fund, 105 Pa.Superior Ct. 366, 161 A. 623 (1932)) (any question of law as to the legality of a substitute referee’s rendering an adjudication must be raised before the Board). The Bureau’s failure to follow its rules and procedures precluded Claimant from raising his objections to the second referee substitution in accordance with the law. Thus the administration of justice requires reversal of the Board’s order denying Claimant’s petition for reconsideration and a remand of this [180] matter so that Claimant may be afforded an opportunity to present whatever evidence he possesses to establish prejudice by the Bureau’s failure to give notice of the second reassignment. The Board’s statements in its October 1, 1993 opinion that it rejected Claimant’s arguments and that Claimant failed to allege “any prejudice” as a consequence of the second reassignment are mere dictum since the Board refused to afford Claimant an opportunity for hearing to present a basis for his objections and the Board made no findings or analysis regarding the prejudice issue.4 Accordingly, the Board’s October 1, 1993 order is reversed and this case is remanded to the Board with directions to allow Claimant an opportunity for hearing to establish that he suffered prejudice as a result of the second reassignment of his claim petition. Thereafter the Board shall consider whether the Bureau’s failure to follow its rules caused prejudice to Claimant and if so, direct the appropriate remedy as warranted under the circumstances.5 ORDER AND NOW, this 19th day of January, 1995, the order of the Workmen’s Compensation Appeal Board dated October 1, 1993 is reversed and this case is remanded to the Board for further proceedings consistent with the foregoing opinion. Jurisdiction relinquished. FRIEDMAN, J., files a dissenting opinion. Footnotes [1] This case was reassigned to the authoring judge on November 9, 1994. [2] Although Claimant’s petition is entitled "Petition for Reconsideration” and not “Petition for Rehearing,” it will be treated as a petition for rehearing because Claimant specifically requested that the case be remanded for further hearing and consideration. Cf. Moats v. Workmen’s Compensation Appeal Board (Emerald Mines Corp.), 138 Pa.Commonwealth Ct. 449, 588 A.2d 116 (1991) (the request of claimant's counsel for a remand in a letter supported by after-discovered evidence was considered the equivalent of a rehearing petition). [3] Claimant technically failed to comply with Pa. R.A.P. 2111(a)(3) and 2116(a) because his brief does not contain a statement of questions presented. Regardless, this Court will exercise its discretion and consider the issue raised regarding referee substitution as it was raised before the Board and both parties addressed the arguments in their briefs. See Sun Oil Co. v. Workmen’s Compensation Appeal Board (Thompson), 158 Pa.Commonwealth Ct. 434, 631 A.2d 1084 (1993) (this Court exercised its discretion and did not dismiss an issue raised in the employer’s brief which was not included in its statement of questions presented because the brief provided ample notice of the nature of employer's arguments); compare Lucarelli v. Workmen’s Compensation Appeal Board (Emerson Elec.) v. Allied Chemical Corp., 119 Pa.Commonwealth Ct. 72, 546 A.2d 151 (1988) (the claimant's appeal was quashed for failure to comply with the mandatory language of Rule 2116(a)). [4] See Rice v. Workmen's Compensation Appeal Board (Rockwell Int’l Corp./Spring Div.), 138 Pa.Commonwealth Ct. 555, 588 A.2d 1011 (1991) (where Board denied petition for rehearing but summarily addressed the merits of the claimant’s arguments without a detailed analysis of why the arguments had no merit, the statement addressing the merits is dictum and the matter must be remanded for further consideration). [5] In their briefs, Claimant and Employer argue at length about the soundness of the Board’s June 2, 1993 order. This Court will not address those arguments because no appeal was taken from that order.