Opinion
Argued February 2, 1983
March 23, 1983.
Workmen's compensation — Disability — Requirements of job — Failure to make finding — Remand.
1. When a referee in a workmen's compensation case fails to make a finding on a crucial issue involving the physical requirements of the claimant's job so as to be able to determine whether the job can be performed by the claimant in her present condition, the case must be remanded. [100-1]
Argued February 2, 1983, before Judges ROGERS, BLATT and CRAIG, sitting as a panel of three.
Appeal No. 3154 C.D. 1981, from the Order of the Workmen's Compensation Appeal Board in case of Magdelene Slone v. Burgettstown Area School District, No. A-80621.
Petition to the Department of Labor and Industry to terminate award. Petition dismissed. Petitioners appealed to the Workmen's Compensation Appeal Board. Dismissal affirmed. Petitioners appealed to the Commonwealth Court of Pennsylvania. Case remanded. ( 47 Pa. Commw. 326) Petition dismissed by referee. Petitioners appealed to the Workmen's Compensation Appeal Board. Dismissal affirmed. Petitioners appealed to the Commonwealth Court of Pennsylvania. Held: Order vacated. Case remanded.
Raymond F. Keisling, Will Keisling, for petitioners.
M. Scot Curran, Clarke and Curran, for respondent, Magdelene Slone.
The Burgettstown Area School District and the Insurance Company of North America (petitioners) appeal an order of the Workmen's Compensation Appeal Board (Board) which affirmed a referee's dismissal of their petition to terminate claimant Magdelene Slone's benefits.
This is the second time this matter has been before us. In Burgettstown Area School District v. Workmen's Compensation Appeal Board, 47 Pa. Commw. 326, 328-29, 407 A.2d 1383, 1384 (1979). Judge CRAIG observed that:
The issue is whether or not claimant is capable of performing assignments as a substitute classroom teacher, given her present physical limitations. There is no dispute as to the availability of that kind of work.
Work at the blackboard is the crux of the problem in this case.
The referee made the following finding of fact, upon which, alone, rests the conclusion that claimant could not perform classroom teacher work:
"4. Claimant could not perform the duties of a classroom teacher because she would have difficulty working at the blackboard. . . . (Emphasis in original.)
A remand was ordered "for a specific finding, based on competent evidence, on the issue of whether or not claimant, as a substitute teacher, would be required to use a blackboard." Id. at 331, 407 A.2d at 1385 (emphasis added).
Upon remand, however, the referee failed to make the directed specific factual finding. Instead, he found that: "Claimant could not perform the duties of a classroom teacher because she would have difficulty working at a blackboard. . . ."
We reiterate that the claimant's ability to perform at the blackboard was and is not at issue; rather, the necessary finding in this matter must answer whether or not she would actually be required to use a blackboard to teach as a substitute in the Burgettstown Area School District.
Inasmuch as factual findings in workmen's compensation cases are to be made by the referee and not by this Court, and insofar as the record discloses testimony from the remand hearing relating to whether or not the claimant would be required to use a blackboard to teach as a substitute in the Burgettstown Area School District, we must, due to the referee's failure to make a finding as directed, again remand this matter for a specific finding on this crucial issue.
The Board took no additional evidence.
Killian v. Workmen's Compensation Appeal Board, 62 Pa. Commw. 29, 434 A.2d 906 (1981).
Our review of the record indicates that at the remand hearing, the principal at Burgettstown Junior-Senior High testified that there was no requirement that substitute or classroom teachers use a blackboard in order to perform their duties.
As we stated the first time this matter was before us:
If the evidence supports a finding that claimant would not be required to use a blackboard, a recomputation of benefits based on a partial disability would appear to be appropriate. See Yellow Cab Co. v. Workmen's Compensation Appeal Board, 37 Pa. Commw. 337, 390 A.2d 880 (1978)
Id. at 331, 407 A.2d 1385.
The Board's order is therefore vacated and this matter is remanded to it for disposition consistent with this opinion.
ORDER
AND NOW, this 23rd day of March, 1983, the order of Pennsylvania Workmen's Compensation Appeal Board in the above-captioned matter is vacated and remanded to said Board for disposition in accordance with this opinion. Jurisdiction is relinquished.