The opinion
PALLADINO, Judge,
dissenting.
I respectfully dissent.
The majority has incorrectly concluded that the referee was within his authority in setting aside the supplemental agreement dated December 28, 1979 (1979 Agreement). Additionally, assuming the referee was correct in setting aside the 1979 Agreement, and the proceeding is addressed as a petition for reinstatement, the petition for reinstatement is barred by the statute of limitations.
Robert Cahill (Claimant) suffered a work-related injury on September 15, 1972. Pursuant to an agreement for compensation, dated September 29, 1972, Claimant received total disability benefits. Claimant thereafter returned to work, executing a final receipt dated July 19, 1973. Claimant then suffered a reoccurrence of the injury, and pursuant to a supplemental agreement dated July 30, 1973, again received total disability benefits. Subsequently, the 1979 Agreement was entered into, by the terms of which the Claimant received partial disability benefits, with the statutory benefit period expiring on October 5, 1986. In a modification petition dated February 13, 1987, Claimant sought to modify the compensation agreement, listing as the sole reason for the petition, “Claimant’s disability has changed from partial to total disability as of December 17, 1986.” In support of this petition, Claimant stated the following: “Physical examination of December 17, 1986 supports the fact that Claimant is now totally disabled.” Modification Petition.
*455 The referee considered the petition as one for reinstatement of compensation for total disability, and held that because of a “fundamental mis-statement” [sic] Conclusion of Law 3, in the 1979 Agreement, Claimant did not have to show a worsening in his compensable disability, and because there was no showing that work was available which Claimant could perform, Claimant was entitled to total disability benefits.
While the form of the petition is not controlling, Andersen v. Workmen’s Compensation Appeal Board (National Forge Co.), 113 Pa.Commonwealth Ct. 601, 537 A.2d 971 (1988), the referee, Board, and this court are only permitted to change the form if the allegations and remedy sought in the petition support such a change. See Pittsburgh Press Co. v. Workmen’s Compensation Appeal Board (Pecora), 82 Pa.Commonwealth Ct. 538, 475 A.2d 972 (1984). In the instant case, changing the form of the petition from one seeking modification to one seeking reinstatement is supported by the petition filed by Claimant. However, the majority’s conclusion that this is a petition to review and set aside a supplemental agreement on the basis that it is a false and illegal agreement is not supported by the allegations within the petition. Such a change is not a change in form, but a change in substance, and is contrary to the constitutional guarantee of due process.
The fundamental maxim of procedural due process is that a party must be given notice of an issue to be adjudicated before a decision can be rendered. In the instant matter the petition filed by the Claimant raised a single issue: whether the Claimant’s disability had “changed from partial to total disability as of December 17, 1986.” Modification Petition. This petition did not allege any error in the 1979 Agreement, nor did the Claimant argue in the petition that the 1979 Agreement was procured by fraud. The Claimant merely alleged that his disability had increased. The referee exceeded his authority by addressing issues not raised by the Claimant and basing his grant of benefits on those issues. Neither the referee nor this court has the authority *456 to create issues for a petitioner. This is exactly what the majority opinion seeks to accomplish.
Furthermore, no evidence was presented to contradict the facts contained in the 1979 Agreement, 1 or to even indicate that if the document itself contained a misstatement of fact, that the 1979 Agreement was illegal under the Act, and/or did not express the intent of the parties. Accordingly, there is no evidence to support the referee’s finding of fact that “there has never been an agreement that work is available to the claimant which he is able to perform within the limitations imposed upon him by his injury.” Finding of Fact 12.
On the second issue, assuming that the petition was sufficient to raise the issue relied upon by the referee for his decision, and concluding, as the majority proposes, that the supplemental agreement is null and void, it must be considered null and void in toto. Leaseway Systems, Inc. v. Workmen’s Compensation Appeal Board, 53 Pa.Commonwealth Ct. 520, 418 A.2d 796 (1980). As stated by the court in Leaseway:
The agreement, as required by Section 407, is wholly null and void and unenforceable as to all provisions of the agreement and as to all parties ... In other words, we must treat it as if it never existed. The result of a decision such as this, of course, is that the parties are returned to their status as it was before they entered into the agreement.
Id., 53 Pa.Commonwealth Ct. at 526, 418 A.2d at 799 (emphasis in original) (citation omitted). Applying this mandate to the facts in this case, all compensation payments ceased as of the date noted in the 1979 Agreement. As a result, the calculation of the period for filing additional claims, for statute of limitations purposes, must be from the date that total disability payments ceased, i.e. March 5, 1977. Accordingly, a petition filed on February 13, 1987, is barred by the three year statute of limitations.
. While the Employer now admits that Claimant did not return to work, this admission was not present in the record before the referee.