Opinion
Argued May 7, 1979
June 20, 1979.
Workmen's compensation — Remand — Interlocutory order.
1. An order of the Workmen's Compensation Appeal Board remanding a case to a referee for further findings is interlocutory and unappealable, unless the record can support only the result reached by the referee or the appeal to the Board was untimely. [433]
Argued May 7, 1979, before Judges WILKINSON, JR., DiSALLE and MacPHAIL, sitting as a panel of three.
Appeal, No. 2962 C.D. 1978, from the Order of the Workmen's Compensation Appeal Board in case of Ethel Brennan (Harry E., deceased) v. Joseph Rogow Sons, Inc., No. A-74740.
Petition with the Department of Labor and Industry for workmen's compensation death benefits. Benefits awarded. Employer appealed to the Workmen's Compensation Appeal Board. Award reversed. Case remanded. Petitioner appealed to the Commonwealth Court of Pennsylvania. Held: Appeal quashed.
Allan L. Fluke, with him Wick, Vuono Lavelle, for petitioner.
Ralph A. Davies, with him James R. Wilson and Thomson, Rhodes Grigsby, for respondent.
Petitioner, widow-claimant, appeals the decision of the Workmen's Compensation Appeal Board (Board) which reversed the referee's award of compensation and of counsel fees and remanded the case to the referee for further findings on whether the death of claimant's husband resulted from the work-related injury. As we view it, the only issue we must and do decide at this time is whether the remand order is interlocutory. We hold that it is and must quash this appeal as premature.
The limited exceptions to the general rule that remand orders are interlocutory arise only in those unusual cases where the record can support only the result the referee reached or the appeal to the Board is untimely. See Roadway Express, Inc. v. Workmen's Compensation Appeal Board, 35 Pa. Commw. 625, 386 A.2d 1083 (1978); United Metal Fabricators, Inc. v. Zindash, 8 Pa. Commw. 339, 301 A.2d 708 (1973). This is clearly not such a case — indeed, as the Board indicates, there is some question whether it supports the referee's decision. This we do not decide at this time.
One thing that alone would take this out of the Zindash exception is the referee's statement in Finding of Fact 8, that the employer's medical expert's testimony "was not sufficient to establish that the work activity of the decedent on the day in question did not precipitate or was not a cause of the acute myocardial infarction." Obviously, the referee's award cannot be based, even in part, on such a finding. The burden is on the claimant.
Accordingly, without deciding the merits of the referee's decision or the propriety of the remand, we will enter the following
ORDER
AND NOW, June 20, 1979, it is ordered that the appeal of Ethel Brennan, w/o Harry E. Brennan, is hereby quashed.