In MPW Industrial Services v. WCAB (Mebane), the Employer sought to have an after hours automobile accident adjudicated to have occurred in the course and scope of employment. The Employer did not use an NCP, because this would not collaterally estop the third party case. The Employer filed a Review Petition.
The WCJ found the Claimant was not misled by the form of the petition, had notice of the relief sought by the Employer, and had a full and fair opportunity to contest the basis of the Employer's assertion. Under Lake v. Workers' Compensation Appeal Board (Whiteford National Lease), 746 A.2d 1183, 1188 (Pa. Cmwlth. 2000), the WCJ entertained the Employer's petition and found the Claimant was in the course and scope of employment.
The Board and the Court held the WCJ did not have subject matter jurisdiction. Since an NCP was not issued, Section 413 of the Act did not give the WCJ the power to review the case. Furthermore, only the employe or the employe's dependents are permitted to file a claim under Section 410.