37 Pa. Commw. 169 | Pa. Commw. Ct. | 1978
Opinion by
Carol J. Hettler (claimant) was employed by the American Can Company (employer) as a sorter-packer when she allegedly injured her back on November 27, 1972. She filed a claim petition for disability benefits, but, after a hearing, she was denied compensation. The referee found that she had failed to
In most instances, an order of the Board remanding a case to a referee is interlocutory and an appeal to this Court from such an order will be quashed. Gilroy v. Workmen’s Compensation Appeal Board, 32 Pa. Commonwealth Ct. 152, 377 A.2d 1302 (1977). There are, however, several exceptions to this general rule. An appeal will not be quashed if the Board had no jurisdiction to remand because the appeal to it was not timely, Riley Stoker Corp. v. Workmen’s Compensation Appeal Board, 9 Pa. Commonwealth Ct. 533, 308 A.2d 205 (1973), or if there could be no result other than that reached by the referee on the basis of the record, United Metal Fabricators, Inc. v. Zindash, 8 Pa. Commonwealth Ct. 339, 301 A.2d 708 (1973). We will also allow an appeal from a remand order where the Board’s action is based on a clear error of law which would necessitate prolonged and frivolous proceedings. Flynn v. Asten Hill Manufacturing Co., 34 Pa. Commonwealth Ct. 218, 383 A.2d 255 (1978).
Here we believe that the Board committed an error of law when it determined that the referee had improperly called two witnesses and the claimant in order to elicit additional information and so the appeal need not be quashed. We have cautioned previ
While we are indeed cognizant of the need for a referee to preserve an aura of impartiality in conducting a hearing and while we fully realize that there may'be circumstances in which a referee risks becoming an advocate by calling and examining witnesses, sua sponte, we do not find the referee’s actions here to have been improper. We believe, therefore, that the Board erred in remanding the matter for determination by another referee.
We will reverse the order of the Board and remand the case to the Board for its consideration and determination of the claimant’s specific exceptions to the referee’s order.
Order
And Now, this 9th day of August, 1978, the order of the Workmen’s Compensation Appeal Board is hereby reversed and the case is remanded to the Board for consideration of the merits of the claimant’s appeal.