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Ratti v. Workers' Compensation Appeal Board2/1/2002
SUBMITTED: May 25, 2001
OPINION NOT REPORTED
Claimant, Brian Ratti, petitions for review of the order of the Workers' Compensation Appeal Board (WCAB) that quashed his appeal as untimely. On July 1, 1999, Ratti filed an appeal to the WCAB from the decision that the Workers' Compensation Judge (WCJ) issued on June 4, 1999. Ratti's appeal is out of time and he has not demonstrated grounds justifying appellate consideration nunc pro tunc. Therefore, we affirm.
Ratti sustained a work place injury on February 12, 1996, for which his employer, Gimpel Corporation, paid total disability benefits pursuant to a notice of compensation payable. On November 5, 1998, Gimpel Corp. petitioned to suspend benefits as of February 10, 1998, the date that Ratti returned to work without earnings loss. Following a hearing on May 21, 1999, the WCJ suspended benefits based on her finding that Ratti returned to work for pre-injury wages and that his subsequent termination from employment, on November 23, 1998, was for reasons unrelated to the work injury. The WCJ mailed the decision to Ratti on June 4, 1999. On July 1, 1999, Ratti's attorney filed an appeal nunc pro tunc challenging the sufficiency of the evidence. The WCAB found no merit in Ratti's contention that his late appeal should be allowed because his attorney was not mailed a copy of the decision. The WCAB quashed the appeal based on its conclusion that the date on which the WCJ mailed her decision to Ratti triggered the twenty-day appeal period and Ratti did not aver any grounds that established good cause for extending the appeal period. Thereafter, Ratti filed the present appeal.
Section 419 of the Workers' Compensation Act establishes the general rule that an appeal to the WCAB must be filed within twenty days after service of the WCJ's decision. 77 P.S. § 853. The WCAB may extend the appeal period "upon cause shown." Id. To establish cause to extend the appeal period, the appellant "must demonstrate grounds for nunc pro tunc relief, i.e. fraud or its equivalent." Handee Marts, Inc. v. Workmen's Comp. Appeal Bd. (Fronzaglio), 673 A.2d 1049, 1052 (Pa. Cmwlth. 1996).
Section 403 of the Act directs that a copy of the WCJ's decision be served on the parties, 77 P.S. § 716, and Section 408 provides that service is deemed to occur on the date the decision is mailed unless the party contesting service shows by competent evidence that the decision was not received or was received after an unusual delay, 77 P.S. § 717. The WCJ's decision was mailed to Ratti on June 4, 1999. Ratti does not dispute this or aver that he failed to receive the decision. He contends only that a copy was not mailed to his attorney. This is not cause for extending the appeal period in the present case because Ratti's attorney did not enter his appearance before the WCJ. See City of Philadelphia v. Workers' Comp. Appeal Bd. (Operacz), 706 A.2d 1292, 1295 (Pa. Cmwlth. 1998).
In City of Philadelphia, we held that the general rule of administrative procedure set forth in 1 Pa. Code § 31.26 applies in workers' compensation proceedings and therefore, in addition to the notice given to parties under Section 403 of the Act, the WCJ is required to give notice to counsel who has entered his or her appearance. Id. at 1295 [overruling Crown, Cork and Seal Corp. v. Workmen's Comp. Appeal Bd. (Savini), 543 A.2d 603 (Pa. Cmwlth. 1988)]. As the WCAB stated, in the present case, "The record indicates that counsel for the Claimant did not enter his appearance on behalf of the Claimant until the filing of the [WCAB] appeal." Ratti v. Gimpel Corp. (No. A99-2072, filed January 23, 2001), WCAB op. at 2. Consequently, the WCJ was not obliged to mail a copy
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