Opinion
Argued April 9, 1976
May 18, 1976.
Workmen's compensation — Remand — Interlocutory order — Appealable order.
1. An order of the Workmen's Compensation Appeal Board remanding a case to a referee for additional evidence is interlocutory, and no appeal will be entertained from such an order unless the appeal to the Board was untimely or the evidence before the Board was sufficient and permitted only one result. [517-8]
Judge KRAMER did not participate in this decision.
Argued April 9, 1976, before Judges KRAMER, WILKINSON, JR., and BLATT, sitting as a panel of three.
Appeals, Nos. 1339 and 1340 C.D. 1975, from the Orders of the Workmen's Compensation Appeal Board in case of Willie Brooks v. Lovekin Trageser, Nos. A-68780 and A-68814.
Petition to reinstate and petition to terminate compensation to the Department of Labor and Industry. Petition to reinstate granted. Petition to terminate denied. Employer appealed to the Workmen's Compensation Appeal Board. Case remanded to referee. Employe appealed to the Commonwealth Court of Pennsylvania. Held: Appeal quashed. Record remanded.
Leonard Rubin, for appellant.
David F. Kaliner, with him James N. Diefenderfer, for appellees.
Appellant filed a petition to reinstate compensation which was heard by a workmen's compensation referee together with appellee-employer's petition to terminate compensation. The referee granted appellant's petition and denied the petition to terminate.
The appellee-employer appealed to the Workmen's Compensation Board of Appeal (Board), which set a hearing for May 15, 1975. Prior to hearing, the referee who had heard the petitions requested that the Board remand the case to him for further consideration. In a letter to the Board subsequent to the hearing, the referee stated his award did not reflect certain evidence presented on behalf of the employer.
The Board remanded for such revisions of findings of fact, conclusions of law and decision as may be lawful and proper. Appellent contends that the referee did not have the right, sua sponte, to request the Board to remand the case for the reconsideration of already presented evidence and that the Board did not have the authority to grant the request as it did.
Without exploring the merits of appellant's arguments, we must dismiss the instant appeal as interlocutory. No decision has yet been rendered on remand and it is not at all certain that appellant will be harmed by the order of the Board. Certainly the order under attack neither puts appellant out of court nor precludes him from presenting the merits of his claim.
This Court has often held that a remand by the Board to a referee for the taking of additional evidence is interlocutory and an appeal therefrom is therefore generally premature. Workmen's Compensation Appeal Board v. E-C Apparatus Corp., 20 Pa. Commw. 128, 339 A.2d 899 (1975); Empire Kosher Poultry, Inc. v. Busel, 15 Pa. Commw. 224, 324 A.2d 797 (1974); Screw Bolt Division of Modulus v. Workmen's Compensation Appeal Board, 12 Pa. Commw. 380, 316 A.2d 151 (1974). Appeals from such remand orders of the Board have only been entertained by this Court in two cases, Riley Stoker Corporation v. Workmen's Compensation Appeal Board, 9 Pa. Commw. 533, 308 A.2d 205 (1973), where the appeal from the referee to the Board was untimely filed, and United Metal Fabricators, Inc. v. Zindash, 8 Pa. Commw. 339, 301 A.2d 708 (1973), where the evidence before the Board was sufficient and permitted only one possible result. Neither of these situations confronts the Court in the instant appeal. See Royal Pioneer Ind., Inc. v. Workmen's Compensation Appeal Board, 11 Pa. Commw. 132, 309 A.2d 831 (1973).
Accordingly, we enter the following
ORDER
NOW, May 18, 1976, the appeal of Willie Brooks is hereby quashed and the record is remanded to the Workmen's Compensation Appeal Board.
Judge KRAMER did not participate in the decision in this case.