F. King v. WCAB (Pep Boys) (Majority Opinion)
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IN THE COMMONWEALTH COURT OF PENNSYLVANIA Fatai King, Petitioner v. Workers Compensation Appeal Board (Pep Boys), Respondent BEFORE: : : : : : : : : No. 1796 C.D. 2007 Submitted: January 18, 2008 HONORABLE BONNIE BRIGANCE LEADBETTER, President Judge HONORABLE DAN PELLEGRINI, Judge HONORABLE MARY HANNAH LEAVITT, Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE LEAVITT FILED: February 25, 2008 Fatai King (Claimant) petitions this Court, pro se, to review an order of the Workers Compensation Appeal Board (Board) quashing his appeal. The Board held that it lacked jurisdiction because Claimant s appeal from the decision of the Workers Compensation Judge (WCJ) was untimely. We agree and will affirm the Board. Claimant was employed by Pep Boys (Employer) as an automobile mechanic. On August 19, 2003, Claimant was involved in a motor vehicle accident as he drove a customer s car from the parking lot to a service bay for repair. Claimant filed a claim petition on April 20, 2005, alleging injuries to his back, neck, thigh and shoulders as a result of the accident. He sought disability benefits from August 19, 2003, and ongoing, as well as medical expenses and counsel fees. Employer filed an answer admitting that Claimant sustained a minor back injury but denying that he suffered any loss of wages. The matter was assigned to a WCJ. After conducting hearings and reviewing the evidence, the WCJ denied Claimant s claim petition. The WCJ s decision turned primarily on his credibility determinations. To summarize, the WCJ credited the testimony of Employer s three eyewitnesses to the incident on August 19, 2003, all of whom contradicted Claimant s version of the events.1 The WCJ rejected Claimant s testimony that he suffered a work-related injury, as well as the testimony of his treating physician, who relied heavily on Claimant s version of events and subjective complaints of pain. The WCJ accepted as credible the testimony of Employer s medical experts, both of whom opined that Claimant did not sustain a disabling injury on August 19. Based on the foregoing, the WCJ concluded that Claimant did not suffer any work-related injuries to his shoulder, back, thighs or neck. The WCJ circulated his decision denying Claimant s claim petition on August 29, 2006. Claimant filed an appeal from the WCJ s adjudication on December 22, 2006. Recognizing that his appeal was untimely, Claimant advised the Board that he had been incarcerated from June 9, 2006, until December 9, 2006.2 According to 1 Claimant testified that he was unable to stop the customer s car and it struck a tire balancer, causing Claimant to hit the steering wheel. Claimant stated that after he exited the car, it suddenly moved backward and pinned him against a car lift. Claimant testified that he fell down and needed assistance getting back up because he was disoriented. Employer s eyewitnesses established that Claimant drove the car into the tire balancer, and that Claimant remained in the car and shifted it into reverse, causing the door to strike the post of the car lift. Employer s witnesses testified that Claimant was not physically pinned between the car and the lift. They also recalled that Claimant exited the car without any assistance and did not complain of any pain. 2 Claimant provided the Board with a letter from the Warden of the Montgomery County Correctional Facility attesting that Claimant was incarcerated from June 9, 2006, until December 9, 2006. 2 Claimant, he was unaware of the WCJ s decision until he collected the mail from his post office box on December 11, 2006. Claimant stated that he was unable to contact his attorney while he was incarcerated because he could not remember his attorney s address. In addition, his attorney would not accept collect telephone calls. Employer moved to quash Claimant s appeal as untimely. In his answer to Employer s motion, Claimant reiterated that he was unable to speak with his attorney while he was incarcerated or to check his post office box for written communications. The Board rejected Claimant s arguments and held that it lacked jurisdiction to hear Claimant s untimely appeal. Claimant now petitions for this Court s review.3 Claimant raises a litany of issues in his brief to this Court, essentially challenging every aspect of the WCJ s decision to deny his claim petition. The only pertinent issue, however, is the timeliness of Claimant s appeal to the Board, and whether the Board erred in quashing the appeal for lack of jurisdiction. We conclude that it did not. Section 423(a) of the Workers' Compensation Act (Act)4 provides that [a]ny party in interest may, within twenty days after notice of a [WCJ s] adjudication shall have been served upon him, take an appeal to the Board.... 77 P.S. § 853 (emphasis added). Ordinarily, the circulation date listed on the cover sheet of the WCJ decision is the commencement date of the twenty-day appeal period. 3 Our standard of review is limited to a determination of whether there has been a violation of constitutional rights, whether an error of law has been committed, whether the practices and procedures of a Commonwealth agency were followed, or whether all necessary findings of fact made by the WCJ are supported by substantial evidence. Ludwikowski v. Workers Compensation Appeal Board (Dubin Paper Co.), 910 A.2d 99, 100 n.1 (Pa. Cmwlth. 2006). 4 Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §853. 3 Ludwikowski v. Workers Compensation Appeal Board (Dubin Paper Co.), 910 A.2d 99, 101 (Pa. Cmwlth. 2006). Thus, to be timely, a claimant must mail the appeal within twenty days of the prescribed date, and failure to do so will result in depriving the Board of jurisdiction to hear the appeal. Id. The twenty-day time limit is strictly observed and cannot be enlarged absent fraud, deception, coercion or duress. Clark v. Workmen s Compensation Appeal Board (Keystone Lawn Spray), 672 A.2d 348, 351 (Pa. Cmwlth. 1995). Mere hardship is insufficient cause. Workmen s Compensation Appeal Board v. Gaines, 355 A.2d 595, 596 (Pa. Cmwlth. 1976). Under extraordinary circumstances, a court may extend a statutory appeal period by granting equitable relief in the form of a nunc pro tunc or now for then appeal. City of Philadelphia v. Tirrill, 906 A.2d 663, 666 (Pa. Cmwlth. 2006). Such extraordinary circumstances may include nonnegligent circumstances relating to either the appellant or the appellant s counsel which caused the untimely appeal. Id. See, e.g., Tony Grande, Inc. v. Workmen s Compensation Appeal Board (Rodriguez), 455 A.2d 299 (Pa. Cmwlth. 1983) (allowing late appeal where three-day delay was due to sudden hospitalization of counsel). In the present case, the WCJ circulated his decision on August 29, 2006. Claimant did not file his appeal to the Board until December 22, 2006, well beyond the twenty-day deadline. Claimant s explanations for his late appeal fail to set forth the requisite extraordinary circumstances to enlarge the appeal period. While Claimant s incarceration from June 9, 2006, until December 9, 2006, may have been a hardship, his failure to make arrangements for retrieval or forwarding of his mail was negligent. His purported inability to speak with his attorney for six months is also a problem that could have been overcome with a little planning. 4 Finally, Claimant has averred nothing to suggest that he was the victim of fraud, deception, coercion, duress, or a breakdown in the operation of the Board. The Board properly quashed Claimant s appeal as untimely.5 For the foregoing reasons, we affirm the order of the Board. ______________________________ MARY HANNAH LEAVITT, Judge 5 Even if Claimant had perfected his appeal he would not have prevailed. It is well-settled that the WCJ, as the ultimate fact-finder, is free to resolve conflicts in evidence and to determine the credibility of witnesses, and this Court is bound by those credibility determinations. Dow v. Workers Compensation Appeal Board (Household Finance Co.), 768 A.2d 1221, 1227 (Pa. Cmwlth. 2001). As the Board aptly noted, Claimant s appeal essentially challenged the WCJ s findings of fact, which were firmly grounded in the WCJ s detailed credibility determinations. Significantly, the WCJ discredited Claimant s version of the events of August 19, 2003, and found, as fact, that Claimant did not suffer any work-related injuries to his shoulder, back, thighs or neck. 5 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Fatai King, Petitioner v. Workers Compensation Appeal Board (Pep Boys), Respondent : : : : : : : : No. 1796 C.D. 2007 ORDER AND NOW, this 25th day of February, 2008, the order of the Workers Compensation Appeal Board in the above-captioned matter, dated August 15, 2007, is AFFIRMED. ______________________________ MARY HANNAH LEAVITT, Judge
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