Opinion
Argued September 13, 1976
October 14, 1976.
Workmen's compensation — Remand — The Pennsylvania Workmen's Compensation Act, Act 1915, June 2, P.L. 736 — Additional evidence — Absence of competent evidence — Failure to make finding — Appealable order — Only possible result — Delay.
1. The Pennsylvania Workmen's Compensation Act, Act 1915, June 2, P.L. 736 permits the Workmen's Compensation Appeal Board to remand a case to a referee for additional evidence only where the referee's findings are not supported by competent evidence or where the referee failed to make a finding on a crucial issue. [570]
2. Orders of the Workmen's Compensation Appeal Board remanding a case to the referee are not appealable unless a conclusion different from that of the referee could not be supported and only delay would result if a rehearing before the referee were conducted. [571]
Argued September 13, 1976, before Judges CRUMLISH, JR., WILKINSON, JR. and ROGERS, sitting as a panel of three.
Appeal, No. 144 C.D. 1976, from the Order of the Workmen's Compensation Appeal Board in case of Robert M. Merryman v. United States Steel Corporation, No. A-70047.
Petition to Department of Labor and Industry for workmen's compensation benefits. Petition denied. Petitioner appealed to the Workmen's Compensation Appeal Board. Determination of referee set aside and case remanded. Employer appealed to the Commonwealth Court of Pennsylvania. Held: Reversed.
Richard F. Lerach, for appellant.
William Sloan Webber, with him James N. Diefenderfer, for appellees.
A Workmen's Compensation referee found that an eye injury suffered by Robert Merryman was not related to his occupation and thus not covered by The Pennsylvania Workmen's Compensation Act. The Workmen's Compensation Appeal Board, without taking evidence, good naturedly set aside the determination of the referee and remanded the case to the referee "to give claimant the opportunity to present medical evidence, and, of course, to give the parties the opportunity to present any other evidence they may desire." The defendant employer has now filed an appeal from this decision of remand.
Act of June 2, 1915, P.L. 736, as amended, 77 P. S. § 1 et seq.
This Court in Forbes Pavilion Nursing Home, Inc. v. Workmen's Compensation Appeal Board, 18 Pa. Commw. 352, 336 A.2d 440 (1976), interpreted the 1972 amendments to the Act as imposing upon the Workmen's Compensation Appeal Board stricter limitations on its former wide capacity to remand cases to referees for further taking of evidence. We held that the new provisions empowered the Board to remand only when "the referee's findings are not supported by competent evidence" or when "the referee [has] failed to make a finding on a crucial issue necessary for the proper application of the law." Forbes, supra, at 358, 336 A.2d at 445. In this case, the medical report of Dr. Novak for the defendant employer constitutes competent and comprehensive evidence upon which the referee could have based his finding. Nor did the referee fail to make a finding on any crucial issue. Therefore, by the Forbes, supra, rule the Workmen's Compensation Appeal Board erroneously remanded.
Sections 853 and 854 of the Act, 77 P. S. § 853, 854.
In general, it is the rule that remand orders are not appealable. Screw Bolt Division of Modulus v. Workmen's Compensation Appeal Board, 12 Pa. Commw. 380, 316 A.2d 151 (1973), Shipp v. Workmen's Compensation Appeal Board, 15 Pa. Commw. 424, 326 A.2d 663 (1974). However, in United Metal Fabricators, Inc. v. Zindash, 8 Pa. Commw. 339, 341, 301 A.2d 708, 710 (1973), this Court held that when "no other conclusion could be supported but that of the Referee, and no purpose except delay would be served by a rehearing before the Referee," an appeal of an order remand should be granted. A recent case has interperted United Metal Fabricators, supra, to allow an appeal from a remand order of the Board "in circumstances where the record is complete enough to preclude a remand for additional evidence pursuant to the Board's appellate authority . . . ." Workmen's Compensation Appeal Board v. Borough of Ferndale, 20 Pa. Commw. 269, 274, 342 A.2d 146, 148 (1975). Here the record is complete and the referee made adequate findings on all crucial issues. Therefore, under Forbes, supra, the remand order was erroneous, beyond the power of the Board and appealable. It will be reversed.
ORDER
AND NOW, this 14th day of October, 1976, the order of the Workmen's Compensation Appeal Board, Docket No. A-70047, remanding to the Referee is reversed.