Summary
In American Can Co. v. Workmen's Compensation Appeal Board, 37 Pa. Commw. 169, 389 A.2d 263 (1978), this Court recognized three exceptions to the general rule that an order of the Board remanding a case to a referee is interlocutory.
Summary of this case from Berks County v. W.C.A.BOpinion
Argued March 2, 1978
August 9, 1978.
Workmen's compensation — Remand — Appealable order — Examination of witnesses by referee.
1. An order of the Workmen's Compensation Appeal Board remanding a case to a referee is interlocutory and ordinarily unappealable, unless the Board had no jurisdiction because the appeal was untimely, no other result than that reached by the referee could have been reached on the basis of the record, or the Board's action was based on a clear error of law which would precipitate prolonged and frivolous proceedings. [171]
2. Although a referee in a workmen's compensation hearing must preserve an aura of impartiality, the referee may in an attempt to bring out the truth call and question witnesses, and such activity by the referee does not require a reversal of his decision when such questioning was not overzealous or prejudicial and was not objected to by the complaining party. [171-2]
Argued March 2, 1978, before Judges WILKINSON, JR., MENCER and BLATT, sitting as a panel of three.
Appeal, No. 616 C.D. 1977, from the Order of the Workmen's Compensation Appeal Board in case of Carol J. Hettler v. American Can Company, No. A-71411.
Petition with the Department of Labor and Industry for disability benefits. Petition denied. Petitioner appealed to the Workmen's Compensation Appeal Board. Reversed and remanded. Employer appealed to the Commonwealth Court of Pennsylvania. Held: Reversed and remanded.
Donald Van Gilder, with him Richard F. Stevens, and Butz, Hudders Tallman, for appellant.
Philip D. Lauer, with him James N. Diefenderfer, for appellees.
Carol J. Hettler (claimant) was employed by the American Can Company (employer) as a sorter-packer when she allegedly injured her back on November 27, 1972. She filed a claim petition for disability benefits, but, after a hearing, she was denied compensation. The referee found that she had failed to prove either that her injury was work-related or that she had given timely notice of the injury to her employer. On appeal, the Workmen's Compensation Appeal Board (Board) set aside the referee's determination because he had himself called and conducted the direct examination of two witnesses and the claimant. The Board held such action to be improper, citing Fonte v. Koppers Co., Inc., 25 Pa. Commw. 349, 360 A.2d 836 (1976), and remanded the case to a different referee for a new determination. The employer has now appealed the Board's remand order to us.
In most instances, an order of the Board remanding a case to a referee is interlocutory and an appeal to this Court from such an order will be quashed. Gilroy v. Workmen's Compensation Appeal Board, 32 Pa. Commw. 152, 377 A.2d 1302 (1977). There are, however, several exceptions to this general rule. An appeal will not be quashed if the Board had no jurisdiction to remand because the appeal to it was not timely, Riley Stoker Corp. v. Workmen's Compensation Appeal Board, 9 Pa. Commw. 533, 308 A.2d 205 (1973), or if there could be no result other than that reached by the referee on the basis of the record, United Metal Fabricators, Inc. v. Zindash, 8 Pa. Commw. 339, 301 A.2d 708 (1973). We will also allow an appeal from a remand order where the Board's action is based on a clear error of law which would necessitate prolonged and frivolous proceedings. Flynn v. Asten Hill Manufacturing Co., 34 Pa. Commw. 218, 383 A.2d 255 (1978).
Here we believe that the Board committed an error of law when it determined that the referee had improperly called two witnesses and the claimant in order to elicit additional information and so the appeal need not be quashed. We have cautioned previously, of course, that a referee should not act in an overly zealous or prejudicial manner, but we have recognized that "[t]he referee is entitled, and indeed bound, to attempt to bring out the truth." Fonte, supra, 25 Pa. Commw. at 351, 360 A.2d at 837. The witnesses called by the referee in this case were asked questions relevant to the issue of whether or not the claimant had given notice of an injury to her employer, and we do not believe that the referee's questioning was either overly zealous or prejudicial. At any rate, no timely objection was made to calling either witness, and it is apparent from the record that counsel for both claimant and employer were given an opportunity to object to the form of the questions asked; indeed, counsel for the employer did object to at least two proposed questions.
While we are indeed cognizant of the need for a referee to preserve an aura of impartiality in conducting a hearing and while we fully realize that there may be circumstances in which a referee risks becoming an advocate by calling and examining witnesses, sua sponte, we do not find the referee's actions here to have been improper. We believe, therefore, that the Board erred in remanding the matter for determination by another referee.
We will reverse the order of the Board and remand the case to the Board for its consideration and determination of the claimant's specific exceptions to the referee's order.
ORDER
AND NOW, this 9th day of August, 1978, the order of the Workmen's Compensation Appeal Board is hereby reversed and the case is remanded to the Board for consideration of the merits of the claimant's appeal.