C. Perkins v. WCAB (Sewickley Car Store) ( 2019 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Cassandra Perkins, :
Petitioner :
:
v. :
:
Workers’ Compensation Appeal :
Board (Sewickley Car Store), : No. 399 C.D. 2019
Respondent : Submitted: July 19, 2019
BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE ELLEN CEISLER, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
JUDGE COVEY FILED: August 12, 2019
Cassandra Perkins (Claimant), pro se, petitions this Court for review of
the Workers’ Compensation (WC) Appeal Board’s (Board) February 14, 2019
opinion and order (Opinion and Order) which dismissed, as untimely, Claimant’s
appeal from the Workers’ Compensation Judge’s (WCJ) January 22, 2018 decision
(January 22, 2018 Decision). The sole issue before this Court is whether the Board
properly dismissed Claimant’s appeal as untimely. 1 After review, we affirm.
1
Claimant’s brief focuses on the merits of her substantive benefits claims, her former
attorney’s allegedly inadequate representation, and her employer’s witnesses’ alleged dishonesty,
rather than the timeliness of her appeal to the Board. Notwithstanding, this Court considers whether
the Board properly concluded that Claimant’s appeal was untimely, because “the question of the
timeliness of the appeal goes to the subject matter jurisdiction of the [body] to hear it[,]” Scott v.
Bristol Twp. Police Dep’t, 669 A.2d 457 (Pa. Cmwlth. 1995), and “[t]he question of subject matter
jurisdiction . . . can never be waived; it may be raised at any stage in the proceedings or sua sponte
by the court.” Pa. Nat’l Guard v. Workmen’s Comp. Appeal Bd., 437 A.2d 494, 496 (Pa. Cmwlth.
1981). Further, Claimant raised the issue in her review petition to this Court and it is the only issue
addressed by the Board in its Opinion and Order.
On December 4, 2013, Claimant sustained a work-related right finger
injury in the course and scope of her employment as a car detailer for Sewickley Car
Store (Employer). Beginning December 17, 2013, Claimant lost time from work.
Employer issued a Notice of Temporary Compensation Payable identifying
Claimant’s injury as a “right 4[th] [Proximal Interphalangeal (]PIP[) Radial Collateral
Ligament (]RCL[)] tear[.]” Supplemental Reproduced Record (S.R.R.) at 82a.2
On January 13, 2014, Claimant returned to work in a modified-duty
office position with Employer. Employer and Claimant executed a compensation
agreement (Agreement), addressing total disability benefits from December 17, 2013
through January 12, 2014, and partial disability benefits commencing January 13,
2014. The Agreement also provided for partial disability benefit payments as of
February 16, 2014. Claimant remained in the modified-duty position until May 16,
2014, when Employer terminated her employment for insubordination and refusal to
follow work orders.
On May 21, 2014, Claimant filed a petition to reinstate WC benefits
(Reinstatement Petition) seeking total disability benefits as of May 16, 2014, alleging
that since her light-duty position was eliminated on that date, she was entitled to have
her benefits reinstated. On June 2, 2014, Employer filed termination and review
medical treatment petitions (Termination and Review Petitions) based upon the
results of its May 14, 2014 independent medical examination. On November 10,
2015, the WCJ denied and dismissed the Reinstatement Petition, finding Employer’s
witnesses more credible than Claimant, and Claimant’s discharge justifiable. The
2
Claimant’s brief to this Court included a reproduced record. Thereafter, Employer filed a
supplemental reproduced record titled “Reproduced Record[,]” using a lowercase “a” following
each page number. Pennsylvania Rule of Appellate Procedure 2173 requires that supplemental
reproduced record pages use a lowercase “b” following each page number. For purposes of clarity,
this Court references Employer’s reproduced record as “S.R.R.” and cites to the pages using the
small “a” as used by Employer.
2
WCJ also granted Employer’s Termination and Review Petitions, finding Employer’s
expert’s opinion that Claimant had fully recovered, more credible than Claimant’s
expert.3
Two days later, on November 12, 2015, Claimant filed a second petition
for reinstatement of WC benefits (Second Reinstatement Petition), seeking
reinstatement of her total disability benefits because her condition worsened. In
addition, Claimant filed a petition to review medical treatment and/or billing, alleging
an incorrect injury description (Medical Review Petition). Employer raised res
judicata and collateral estoppel defenses to the Second Reinstatement Petition. In the
January 22, 2018 Decision, the WCJ denied the Second Reinstatement Petition and
the Medical Review Petition. The WCJ’s cover letter accompanying the January 22,
2018 Decision, notified the parties that appeals must be filed within 20 days from the
date thereof. See S.R.R. at 80a.
On February 17, 2018, Claimant mailed her pro se appeal from the
January 22, 2018 Decision (Appeal) to the Board via FedEx Express,4 which the
Board received on February 21, 2018. See S.R.R. at 33a, 76a. Thereafter, Employer
filed a Motion to Quash Claimant’s Appeal as untimely (Motion) under Section
423(a) of the WC Act (Act).5 On February 14, 2019, the Board issued the Opinion
and Order granting the Motion and dismissing Claimant’s Appeal as untimely.
Claimant appealed to this Court.6
This Court has explained:
3
Claimant appealed from the WCJ’s November 10, 2015 decision to the Board, which
affirmed the WCJ’s decision on May 24, 2016.
4
Notably, Claimant dated the appeal document February 16, 2018. However, the FedEx
Express mailing label reflects that Claimant mailed the document on February 17, 2018.
5
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 853.
6
“This Court’s review is limited to a determination of whether necessary findings of facts
are supported by substantial evidence, whether the Board’s procedures were violated, whether
constitutional rights were violated or [whether] an error of law was committed.” Mills v. Workers’
Comp. Appeal Bd. (Sch. Dist. of Harrisburg), 24 A.3d 1094, 1096 n.2 (Pa. Cmwlth. 2011).
3
Under Section 423(a) of the Act, a party has 20 days to file
an appeal with the Board. Appeals filed after this
timeframe are untimely and divest the Board of jurisdiction
to reach the merits of the issues raised in the appeal. Under
Section 111.3 of the Special Rules [of Administrative
Practice and Procedure before the Board (Special Rules), 34
Pa. Code § 111.3], an appeal is considered filed as of the
date of the United States Postal Service postmark on the
envelope. When a party uses a private postmark, the
appeal is deemed filed as of the date the Board receives
the appeal.
Mills v. Workers’ Comp. Appeal Bd. (Sch. Dist. of Harrisburg), 24 A.3d 1094, 1096
(Pa. Cmwlth. 2011) (emphasis added; citation omitted). Further, “[t]he 20-day
appeal period is to be strictly observed. The time for taking an administrative
appeal cannot be extended as a matter of grace or mere indulgence.” Mills, 24 A.3d
at 1097 (emphasis added; citation and footnote omitted). Only where a “delay in
taking action was caused by extraordinary circumstances involving fraud, a
breakdown in the administrative process, or non-negligent circumstances related to
the claimant, his counsel, or a third party[,]” may the deadline be extended. Dep’t of
Labor & Indus., Uninsured Emp’rs Guar. Fund v. Workers’ Comp. Appeal Bd.
(Gerretz, Reliable Wagon and Auto Body, Inc.), 142 A.3d 148, 155 (Pa. Cmwlth.
2016); see also City of Phila. v. Workers’ Comp. Appeal Bd. (Operacz), 706 A.2d
1292 (Pa. Cmwlth. 1998); Tony Grande, Inc. v. Workmen’s Comp. Appeal Bd.
(Rodriguez), 455 A.2d 299 (Pa. Cmwlth. 1983).
To timely appeal from the January 22, 2018 Decision, Claimant was
required to file her Appeal with the Board no later than February 12, 2018. The
Board received it on February 21, 2018. Because the Appeal was sent with a private
postmark, it is deemed to have been filed on February 21, 2018. Consequently,
Claimant filed her Appeal nine days beyond the 20-day appeal deadline. As the
Board noted in its Opinion and Order, “Claimant d[id] not ask for consideration of
her Appeal nunc pro tunc nor offer any explanation for the late filing.” S.R.R. at 95a
4
(italics added). Accordingly, the Board properly granted the Motion and dismissed
Claimant’s Appeal as untimely.
For all of the above reasons, the Board’s order is affirmed.
___________________________
ANNE E. COVEY, Judge
5
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Cassandra Perkins, :
Petitioner :
:
v. :
:
Workers’ Compensation Appeal :
Board (Sewickley Car Store), : No. 399 C.D. 2019
Respondent :
ORDER
AND NOW, this 12th day of August, 2019, the Workers’ Compensation
Appeal Board’s February 14, 2019 order is affirmed.
___________________________
ANNE E. COVEY, Judge