The opinion
PALLADINO, Judge,
concurring and dissenting.
I agree with the majority that an award of counsel fees is unwarranted in this case of first impression. I also agree that modification of the supplemental agreement in this case on the bases of the agreement’s lack of date and attesting witness is not contemplated by subsection 413(a) of The Pennsylvania Workmen’s Compensation Act (Act), Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 771. However, I cannot agree with the conclusion of the majority that subsection 413(a) provides a referee with authority to modify a supplemental agreement simply because it is the referee’s subjective opinion that the amount of compensation which the claimant and the employer mutually deemed acceptable and incorporated into their agreement was inadequate to compensate the claimant for his injuries.
Referees are authorized to modify an agreement pursuant to subsection 413(a) of the Act which states:
A referee ... may ... modify or set aside an original or supplemental agreement ... if it be proved that such ... agreement was in any material respect incorrect.
The term “in any material respect incorrect” is not defined in the Act. Where a term used in an act of the legislature is not defined, the term must be interpreted and applied according to its common and approved usage. United States Steel Corp. v. Unemployment Compensa *541 tion Board of Review, 10 Pa.Commonwealth Ct. 553, 312 A.2d 460 (1973); section 1903 of the Statutory Construction Act of 1972, 1 Pa.C.S. § 1903.
“Incorrect” is defined in Webster’s Third New International Dictionary in pertinent part as:
1 ... not corrected ... 2 ... inaccurate, faulty ... 4 : failing to coincide with the truth: inaccurate, imprecise.
Webster’s Third New International Dictionary 1145 (1986). The thrust of these definitions is that an incorrectness is objectively determinable. The dictionary definition precludes interpreting “incorrect” to mean a discrepancy based solely on opinion or other subjective factors.
Judge Alexander Barbieri in his treatise on Pennsylvania workmen’s compensation supports this position. Implying that an agreement is incorrect in a material respect only when it involves an inaccuracy that is objectively ascertainable, Judge Barbieri states that modification of an agreement pursuant to subsection 413(a) is appropriate when
there has been a misstatement of wages or the extent of injuries, or there has been some failure of proper computation in arriving at the benefits payable____ [Subsection 413(a)’s] purpose is to provide a procedure for correcting errors____ [T]he first paragraph of Section 413 deals with errors at the outset in voluntary arrangements.
2 A. Barbieri, Pennsylvania Workmen’s Compensation and Occupational Disease § 6.14(2) at 43-44 (1975).
The Pennsylvania supreme court’s decisions in Turner v. Jones & Laughlin Steel Corp., 479 Pa. 618 , 389 A.2d 42 (1978) and Reed v. Workmen’s Compensation Appeal Board, 499 Pa. 177 , 452 A.2d 997 (1982) authorize a referee to modify an agreement when the agreement contains a material mistake that is objectively determinable.
In Turner , a claimant sought modification of a compensation agreement by arguing that, although the agreement normally would have maximized a claimant’s income, the agreement did not do so for him because of the pecularities of his pension scheme. A referee modified the agreement. *542 The supreme court upheld the modification of the compensation agreement pursuant to subsection 413(a) of the Act on the ground that the agreement was materially incorrect because it contained an objectively determinable error. Specifically, the supreme court concluded:
Both parties to this action were mistaken as to the proper application of the relevant statutory provisions when this agreement was made. In light of the liberal intent of this Act, an agreement which severely affects a claimant financially by eliminating almost $200 a month from his income is indeed materially incorrect when a substantially similar compensation under another Section for which he qualifies could preserve for him that additional income. In modifying the agreement, the referee gave [the claimant] the election which is available to him under the statute.
Id., 479 Pa. at 628 , 389 A.2d at 47 .
The supreme court again reviewed the modification of an agreement in accordance with subsection 413(a) of the Act in Reed . There, the spouse of a deceased claimant sought to modify a supplemental agreement so that the agreement would not be based on total disability and therefore terminate on the claimant’s death but, rather, would be based on specific loss and therefore survive the claimant. After deciding that the claimant’s right to modify survived the claimant, the supreme court held that the referee properly modified the agreement because the agreement was premised on an objectively determinable error, i.e., the parties’ mistaken reliance on a statutory provision under which the claimant received less compensation than was available to the claimant under an alternative, relevant statutory provision.
In both Turner and Reed , the parties’ compensation agreements were mistakenly based upon statutory provisions that afforded the respective claimants less compensation than would have been available to the claimants under other applicable statutory provisions; therefore, the compensation agreements contained objectively ascertainable *543 errors and violated the Act. Consequently, for a compensation agreement to be “in any material respect incorrect” under the supreme court’s analyses in Turner and Reed , the agreement must contain an error that is objectively determinable.
Correspondingly, the commonwealth court’s decisions in Litton Industries v. Workmen’s Compensation Appeal Board (Christner), 78 Pa.Commonwealth Ct. 79, 466 A.2d 1114 (1983), Furmanek v. Workmen’s Compensation Appeal Board, 64 Pa.Commonwealth Ct. 367, 439 A.2d 1359 (1982), and Ambrosia Coal & Construction Co. v. Workmen’s Compensation Appeal Board, 42 Pa.Commonwealth Ct. 512, 400 A.2d 1377 (1979) also authorize a referee to modify an agreement only if the agreement contains a material mistake that is objectively ascertainable.
In Litton, an employer contended that a supplemental agreement should be modified because the agreement stated that the claimant had lost the use of his right hand whereas, when the parties signed the agreement, the claimant’s use of his right hand had merely been reduced by 50 percent. Explaining that, under the existing case law, the claimant could be deemed to have lost the use of his right hand for all practical intents and purposes where the claimant’s hand was only partially disabled, the commonwealth court held that the supplemental agreement was not modifiable because the agreement did not contain a true mistake of fact or law when the parties entered into the agreement.
In Furmanek , the commonwealth court held that a supplemental agreement was modifiable because the claimant’s current disability was mistakenly identified in the agreement as a recurrence of a disability stemming from a prior injury although the parties to the agreement knew that the claimant’s current disability derived from a new and separate injury.
In Ambrosia, the commonwealth court concluded that a supplemental agreement was modifiable because the agreement mistakenly indicated that the claimant was partially disabled whereas the claimant actually was totally disabled *544 when the agreement was signed and the claimant had signed the agreement under a misunderstanding that, if he failed to sign the agreement, he would not receive compensation.
In Litton, Furmanek, and Ambrosia, the parties’ compensation agreements were alleged to misstate material facts concerning the nature of the particular claimants’ injuries; therefore, the compensation agreements were alleged to contain objectively ascertainable errors. Consequently, for an agreement to be “in any material respect incorrect” under the commonwealth court’s analyses in Litton, Furmanek, and Ambrosia, the agreement must contain an error that is objectively determinable.
Nevertheless, the majority would permit a referee to modify an agreement when the compensation provided to the claimant in the agreement is, in the referee’s subjective opinion, inadequate to compensate the claimant for his injury. Specifically, the majority states that, where, as here, a claimant has been disfigured, a referee may modify an agreement if the compensation provided to the claimant in the agreement is, in the referee’s subjective opinion, “grossly disproportionate” to the claimant’s degree of disfigurement. The majority would authorize a referee to substitute his or her own subjective opinion of adequate compensation for disfigurement in lieu of the parties’ own, mutually agreed upon determination of adequate compensation for disfigurement. See the opinion in the present case of the Workmen’s Compensation Appeal Board which perceptively noted that, when a claimant and employer submit their dispute to a referee, the number of weeks of compensation awarded by the referee for disfigurement is admittedly very subjective.
In the case now before us for disposition, claimant’s counsel declared on the record before the referee that claimant was “not disagreeing with the Supplemental Agreement in any respect other than the number of weeks.” Transcript of August 30,1988, at 6. Claimant has not contended that he signed the agreement as a result of *545 coercion, deceit or misunderstanding, see Reed; or that, in computing the amount of compensation provided to claimant under the agreement, claimant and employer mistakenly relied upon a statutory provision that gave claimant less compensation than claimant could have received under another relevant statutory provision, see Turner; or that the agreement misstates the nature and extent of claimant’s disfigurement as known to the parties when the parties signed the agreement, see Litton; Furmanek; Ambrosia. Claimant has not pointed to any objectively determinable error in the supplemental agreement which would justify modification of the agreement. To the contrary, claimant has requested modification of the supplemental agreement simply because claimant now wishes that he and employer had agreed to a different compensation amount.
Inasmuch as there is no objectively ascertainable error in the parties’ supplemental agreement, I would hold that the parties’ agreement is not subject to modification. Accordingly, I would reverse the order of the Workmen's Compensation Appeal Board.