The opinion
McCLOSKEY, Senior Judge,
dissenting.
I respectfully dissent. In the instant action, Mr. Lamb’s (Claimant) petition sought review of compensation benefits and asserted that there had been a miscalculation of his average weekly wage. Furthermore, the petition requested an adjustment of Claimant’s benefits to begin as of June 6, 1995. The Workers’ Compensation Judge (WCJ) made just such an award.
On appeal, this Court’s scope of review is limited to a determination of whether there was an error of law or an abuse of discretion was committed and whether the WCJ’s findings of fact are based upon substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa.C.S. § 704. Berisford v. Workmen’s Compensation Appeal Board (Jessop Steel Co.), 142 Pa.Cmwlth. 83 , 596 A.2d 1237 (Pa.Cmwlth.1991); Russell v. Workmen's Compensation Appeal Board (Volkswagen of America), 121 Pa.Cmwlth. *217 436 , 550 A.2d 1364 (1988). Thus, we must determine whether the WCJ’s decision to not award Claimant relief beyond that requested in his petition was an abuse of discretion. I assert that it was not.
Section 413 of the Workers’ Compensation Act (Act) 1 provides that:
A workers’ compensation judge may, at any time, review and modify or set aside a notice of compensation payable and an original or supplemental agreement or upon petition filed by either party with the department, or in the course of proceedings under any petition pending before such workers’ compensation judge, if it be proved that such notice of compensation payable or agreement was in any material respect incorrect. (Emphasis supplied.)
Presently, the majority opinion changes the interpretation of Section 413 from “may review and modify or set aside” to “must review and modify or set aside.” Although it was within the WCJ’s discretion to look beyond the terms of the petition, I cannot say that the WCJ abused his discretion when he awarded Claimant precisely what he requested in his petition.
Accordingly, I would have affirmed the determination of the Workers’ Compensation Appeal Board.
. Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 771.