Opinion
August 17, 1978.
Workmen's compensation — Appealable order — Remand.
1. An order of the Workmen's Compensation Appeal Board remanding a case to a referee for additional evidence is interlocutory and unappealable except where the Board lacked jurisdiction because the appeal was untimely or where no conclusion other than that reached by the referee could be supported, and no exception is granted permitting an appeal in the case wherein it is asserted that only a result opposite to that reached by the referee can be supported by the record. [269-70]
Submitted on briefs June 8, 1978, to Judges CRUMLISH, JR., BLATT and DiSALLE, sitting as a panel of three.
Appeal, No. 957 C.D. 1977, from the Order of the Workmen's Compensation Appeal Board in case of David M. Powell v. Williamsport Roofing Co., Inc., No. A-72133.
Petition to the Department of Labor and Industry to set aside final workmen's compensation receipt. Receipt set aside. Petitioner and employer appealed to the Workmen's Compensation Appeal Board. Case remanded to referee. Employer appealed to the Commonwealth Court of Pennsylvania. Held: Appeal quashed.
Charles J. Tague, Jr., and Hager and Roesgen, for petitioner.
Anthony J. Grieco, Law Offices — Henry P. Perciballi, and James N. Diefenderfer, for respondents.
Williamsport Roofing Co., Inc. (Appellant) appeals the order of the Workmen's Compensation Board of Review (Board) remanding the petition of David Powell to the referee for the taking of additional evidence. Briefly, Powell petitioned to set aside a final settlement receipt which he executed in regard to injuries incurred in a work-related accident. He claimed that he was again suffering from the injurious effects of that initial accident. The referee found in Powell's favor and set aside the final settlement receipt. Upon review, the Board remanded the case to the referee because it found the medical testimony relating to the cause of Powell's current injury equivocal and desired additional evidence on that issue.
Appellant argues that this case should not be remanded since it asserts that remand would serve no purpose because, in effect, no decision other than the one the referee did not reach is possible. That is, Appellant asserts that the record will not support any conclusion other than a finding that Powell's final receipt should not be set aside.
It is well settled that "an order of the Board remanding a case to the referee for the taking of additional testimony is generally interlocutory and therefore unappealable." Workmen's Compensation Appeal Board v. Glen Nan, Inc., 31 Pa. Commw. 510, 511, 377 A.2d 208, 208-09 (1977). The courts have provided only two exceptions to that rule. The first is for appeals where the Board lacked jurisdiction 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). This exception is not here relevant. The second exception permits this Court to consider an appeal from a remand order where an examination of the record shows that no conclusion other than that reached by the referee can be supported. United Metal Fabricators, Inc. v. Zindash, 8 Pa. Commw. 339, 301 A.2d 708 (1973). In the instant case, Appellant does not argue that no other conclusion than that reached by the referee can be supported by the record since the referee found against it. Rather, it argues the reverse, that the referee's decision was incorrect and that the opposite decision was the only one that can be supported by the record. Plainly, Appellant's contention does not fall within the exceptions noted above and the Board's order was interlocutory and non-appealable.
Accordingly, we
ORDER
AND NOW, this 17th day of August, 1978, the appeal of Williamsport Roofing Co., Inc., is quashed.