Opinion
Argued October 31, 1975
January 5, 1976.
Occupational disease — Power of Workmen's Compensation Appeal Board — The Pennsylvania Occupational Disease Act, Act 1939, June 21, P.L. 566 — The Pennsylvania Workmen's Compensation Act, Act 1915, June 2, P.L. 736 — Ultimate fact finder — Remand — Expert medical testimony — Conflicting evidence.
1. The Pennsylvania Occupational Disease Act, Act 1939, June 21, P.L. 566, unlike The Pennsylvania Workmen's Compensation Act, Act 1915, June 2, P.L. 736, still provides that the Workmen's Compensation Appeal Board is the ultimate fact finder with power to remand a case to receive expert medical testimony in an occupational disease case even though the findings of the referee were adequately supported by the evidence. [528-9]
2. In a case brought under The Pennsylvania Occupational Disease Act, Act 1939, June 21, P.L. 566, the Workmen's Compensation Appeal Board may resolve conflicts in medical testimony differently than did the referee and may remand a case for better medical testimony. [529-30]
Argued October 31, 1975, before Judges WILKINSON, JR., ROGERS and BLATT, sitting as panel of three.
Appeal, No. 222 C.D. 1975, from the Order of the Court of Common Pleas of Allegheny County in case of Nunzio Guzzo v. Westinghouse Electric Corporation and Commonwealth of Pennsylvania, No. 426 of 1974.
Petition with Department of Labor and Industry for occupational disease benefits. Benefits denied. Petitioner appealed to the Workmen's Compensation Appeal Board. Case remanded. Employer appealed to the Court of Common Pleas of Allegheny County. Order affirmed. Employer appealed to the Commonwealth Court of Pennsylvania. Held: Appeal quashed.
Samuel P. Gerace, with him Jones, Gregg, Creehan and Gerace, for appellant.
Alexander J. Pentecost, with him Samuel C. Vary, Assistant Attorney General, and James N. Diefenderfer, for appellees.
Westinghouse Electric Corporation, formerly the employer of Nunzio Guzzo, has appealed from an order (without opinion) of the Court of Common Pleas of Allegheny County affirming an order of the Workmen's Compensation Appeal Board remanding the matter of Guzzo's claim petition to a referee for the appointment of an impartial physician specializing in psychiatry to examine Guzzo and to report on whether he suffers from a neurosis induced by an occupational disease.
Guzzo's claim petition alleging total disability caused by "Epoxy Poisoning — Acute Neurosis" was filed pursuant to The Pennsylvania Occupational Disease Act, Act of June 21, 1939, P.L. 566, as amended, 77 P. S. § 1201 et seq. At the referee's hearing, the claimant adduced evidence tending to show that he suffers from dermatitis induced by the poisoning effect of epoxy resin, a material handled by him in his employment by Westinghouse; that epoxy poisoning is not a disease common to the general population; and that the claimant is totally disabled as the result of neurosis induced by dermatitis. The condition of neurosis and its relationship to the claimant's dermatitis was testified to by a general practitioner. Westinghouse adduced the testimony of qualified physicians specializing in dermatology that the claimant's dermatitis was not caused by epoxy poisoning. The referee found that the claimant had failed to establish by sufficient competent evidence that he suffers from or is disabled as the result of an occupational disease. The Board, although doubtful whether neurosis caused by an occupational disease is compensable, remanded for expert psychiatric evidence because the claimant's only proof of neurosis was the opinion of a general practitioner.
The claimant contends that the appeal from the Board's order of remand was interlocutory and should be quashed.
Westinghouse contends first that the Board was without power to remand, citing Gibson-Boulevard, Inc. v. Workmen's Compensation Appeal Board, 19 Pa. Commw. 147, 338 A.2d 697 (1975), and Forbes Pavilion Nursing Home, Inc. v. Workmen's Compensation Appeal Board, 18 Pa. Commw. 352, 336 A.2d 440 (1975). In the cases just cited we held that amendments made to The Pennsylvania Workmen's Compensation Act by the Act of February 8, 1972, P.L. 25, and the Act of March 29, 1972, P.L. 159, constituted the referee the final arbiter of the facts; that the Workmen's Compensation Appeal Board may no longer make independent determinations of the facts unless the referee's findings are not supported by competent evidence; and that in cases where the Board may not make such independent determinations it may not remand the case for the appointment of an impartial medical expert. However, The Pennsylvania Occupational Disease Act was not amended as was The Pennsylvania Workmen's Compensation Act, and Section 423 of the former, 77 P. S. § 1523, still provides that the Board shall be the ultimate fact finder. Dunn v. Merck Co., Inc., 12 Pa. Commw. 572, 317 A.2d 657 (1974). It follows that the Board has the power to remand for expert medical testimony in cases brought under The Pennsylvania Occupational Disease Act, including those where the referee's findings are supported by competent evidence.
Act of June 2, 1915, P.L. 736, as amended, 77 P. S. § 851 et seq.
Act of June 21, 1939, P.L. 566, as amended, 77 P. S. § 1201 et seq.
Westinghouse further contends that our case of United Metal Fabricators, Inc. v. Zindash, 8 Pa. Commw. 339, 301 A.2d 708 (1973), where we entertained and sustained an employer's appeal from an order of remand, requires a reversal of the orders below and reinstatement of the referee's order denying compensation. In Zindash we concluded upon an examination of the record that the claimant had established by his own testimony that he had not been injured in an accident at work, and by his treating physician's testimony that his physical problem for which compensation was claimed was solely related to an injury sustained prior to the accident alleged as its cause. In the instant case, there is conflicting testimony as to the cause of the claimant's dermatitis and evidence unsatisfactory to the Board as to the cause of the claimant's disabling neurosis. The Board is empowered both to resolve the conflicting evidence as to the cause of claimant's dermatitis differently from the referee's determination, and to require what it considers better medical evidence of the nature, extent and cause of his neurosis. While we share the Board's doubt as to the compensability of neurosis as an occupational disease, we may not prevent its inquiry into the matter on this record.
Appeal quashed.