*1 LARSEN, Justice, dissenting.
I dissent and in support thereof cite the Commonwealth case, opinion in this Court authored by the Honorable James Crumlish, Jr. Auresto v. Commonwealth, Department of Resources, Environmental Pa.Cmwlth. 490 A.2d
v. WORKMEN’S COMPENSATION APPEAL BOARD INC.).
(DORR-OLIVER, KAY, Willard Andrew Resuta and Michael Pesta WORKMEN’S COMPENSATION APPEAL BOARD INC.) (DORR-OLIVER, DORR-OLIVER, INC.
Supreme of Pennsylvania.
Argued Dec. 1985.
Decided June *2 Domalakes, Frackville, for appellant. E. John Hazleton, Evelyn L. for Croll. Kennedy, Thomas Hazleton, Kay, Andrew Ecker, E. for Willard Bartel Michael Pesta. Resuta & FLAHERTY, LARSEN, C.J., NIX,
Before zappala hutchinson, McDermott, PAPADAKOS, JJ. THE COURT
OPINION OF HUTCHINSON, Justice. Inc., single employer, aby
This is an appeal reversing the Court of Commonwealth two orders from (“Board”). The Board of benefits compensation denial affirmed a referee’s Board order, In appellees. one Common- to all four individual by appellee awarded Court reinstated wealth other, In the Commonwealth referee. an earlier Pesta to the Board Resuta Kay, the cases remanded referee’s denial. further review an earlier for previously by cases had been consolidated All these to a third referee with directions to and remanded wheth- expert on the issue of impartial testify an appoint had a silica haz- single place employment appellees’ er the same All four cases involve ard.1 there of a respect presence issue with to the same factual hazard. the first two by the inconsistent results reached Despite the Board acted referees, Court first held remanding the cases appellate power initially beyond and reinstated on the hazard issue impartial In contra- first referee awarded Croll. the benefits however, it then holding, for its the reason diction of denied in which the referee had the cases remanded consideration for further and Pesta benefits *3 the Board Because we believe in its role. Board the inconsistent attempt to reconcile power to has the directing impartial cases by these results on record referee, single to a all of the cases assigning and respect Kay, Court. With we reverse Commonwealth of the Board’s Pesta, a denial we note that Resuta of a reinstatement requires these facts on power remand proof, the burden with parties against the decision first referee who by entered them benefits denying remand would power Board A denial of their case. heard an inconsist- of benefits to Croll an award leave us with Pesta, can sometimes which Kay, ent denial view factfinders ways individual differing from the result Krawczynski, Inc. evidence, Cyclops, 9 see Universal one (1973), but 305 A.2d Ct. Pa.Commonwealth 176, 757 avoid on sought to wisely the Board to us which it seems workplace same in the employees involving four record his case and by appellee Croll in order Appeals from interlocu quashed as were the other three appellant Dorr-Oliver Board, Pa.Com Appeal 50 Compensation tory. v. Workmen’s Croll (1980); v. Work 483, Inc. 413 A.2d Ct. monwealth 490, Ct. Pa.Commonwealth Compensation men's A.2d 441 evidence, only relied on the same get who different results.
Croll, appellant, Resuta and all Kay, Pesta worked 108(k) Dorr-Oliver, Inc. Each filed claims under Section Act, 2, Compensation Appeal Act of June Workmen’s as 17, amended 1972, P.L. Act of October 27.1(k) (“Act”).2 P.L. 77 P.S. All four cases were § However, Referee assigned to Ecker. Referee because Pesta, representing Kay, Ecker’s son was Resuta and reassigned routinely Bureau Workers’ referee, Piccone, leaving three to a different Referee these Referee Ecker. All four claimants the Croll case with expert testimony concerning same the exist- presented of a hazard in their which ence silica Referee Ecker resolved the con- claimed caused silicosis. him in favor of bene- flicting testimony awarded Piccone the conflicts in favor of fits. Referee resolved and, applications consequently, Dorr-Oliver denied other for benefits. to the Com- appealed Resuta and Pesta (“Board”) from the denial of their
pensation Appeal to the Board from appealed and Dorr-Oliver applications, Looking these decision to Croll. award results, the cases. It the Board consolidated inconsistent together appointment and remanded for reviewed them then new referee hearing and a before a impartial expert of an “adequate- of a hazard was not the existence because conflicting conclusions resolved,” due to ly apparently gave Kay, This remand Resu- two referees. original of the *4 prove to to the opportunity attempt and Pesta a second ta hazard; opportunity Croll an gave of a silica it existence awarding him in the findings a defect up possible clear provides: 2. Section 108 Act, disease," shall mean "occupational as used this term The only following diseases: the with, involving (k) any contact occupation direct Silicosis in of, handling exposure to dust of silicon dioxide. indicated, Hereafter, references, are to unless otherwise all section Act, as amended. get also received an a opportunity Dorr-Oliver benefits.3 a hazard decision on whether there was silica at consistent appealed these decisions to Croll and Dorr-Oliver plant. its Court, protect Croll to his benefits and Commonwealth protect the referee’s decisions which had Dorr-Oliver cases. That court it of three of four liability absolved as interlocutory. Croll v. Work quashed appeals both Board, 50 Pa. Commonwealth Appeal Compensation men’s (1980); 483, 413 A.2d Inc. v. Ct. Work Board, 50 Pa.Commonwealth men’s A.2d Ct. 490, 413 quashed appeals,
After these Commonwealth referee, Rapkin. to a third Referee four cases went back at impartial expert appointed from new He heard evidence request Compensa- the Bureau Workers’ sought doing, apparently In the Board to avoid tion. so denying to one claimant and awarding result of benefits remand, the others on the same facts. On them to three there was no hazard impartial expert testified that silica Rapkin, accept- all four worked. Referee place where hazard, no denied all four his that there ing opinion appealed4 This decision was applications benefits. which affirmed.5 the Board on Court then reversed by the him the benefits awarded Croll’s claim awarded Croll, Ecker, awarding specifically did not while 3. Referee The found an "industrial hazard." find a hazard but instead however, presence silica in only presented, related to the evidence workplace. 17, 1982, hearing after but before the September 4. Croll died on representing is his inter- widow now made his decision. His referee ests. opinion its was made under decision The stated in its 5. amended, Act, P.L. as Occupational Act of June Disease actually under the The case arose 1201-1601. §§ P.S. actually the claim- benefited Compensation Act. Board’s mistake The below, ants, exercise since the Board’s now lost of whom had all gave Occupational Act powers Disease under the de review novo findings adverse of the referee’s an even broader claimants Compensation Act. See under the than would have had infra -n. *5 84 referee. At the time that
initial
same
court remanded
petitions
and Pesta’s
for
of the
now
granted
initial denial of benefits. We
allocatur and
Court,
the
that
Board did
holding
reverse
on this
power
particular
remand these cases
have
the denial of
the third referee
by
record
benefits
arbitrary
not
on an
affirmed because it
based
must be
was
disregard
competent
evidence.
capricious
Act,
the Board was
Prior to
1972 amendments
cases.
compensation
factfinder
workmen’s
the ultimate
agents
on the claims were
The referees who took evidence
freely
thus the Board could
substitute
of the
The 1972 amend-
findings for those of the referee.
own
accept
by
facts found
require the
ments
competent evi-
supported by
unless
are not
referee
854;
Inc.
Cyclops,
dence. Section
P.S.
Universal
§
176,
The Barbieri, 2 A. workers. quate compensation injured the Act are de- 6.20(1). Proceedings under supra, § of all the Board’s remand goal, to further signed wholly is consistent to a new referee these claims four of given Pesta were Kay, Resuta and purpose. with that to the same entitlement their proving chance at second one referee denied them but which another had *6 on same facts. remand awarded to Croll the The flagrant remove of designed appearance injustice by to a in to reconcile inconsistent results virtu- providing a vehicle cases. ally pending identical say general power
This is
the Board has a
to
not
it
is an
consolidate
and remand cases when
feels there
case,
among
individual results.
In this
their
inconsistency
the cases exists because of
power
consolidate
relating
the existence
the identical nature of the evidence
silica
the
appellant’s
of a
hazard
and because
time.
approximately
claimants
there at
the same
worked
consolidation,
Board,
noted that while one
The
after
the
who stated that
there was
expert
referée believed
hazard,
expert
the
referee believed the other
other
no such hazard. The Board was
said that
there was
who
expert
the
of
credibility
to review
the
wit-
attempting
not
nesses;
rather,
an
as
inconsistency
it was
resolve
trying
did
fact exist.
to whether a silica hazard
Borovich,
supra,
the Board had the
In
we stated that
findings
more
evidence when the
power
remand cases
The
found
inconsistent.
referee
only arguably
were
pulmonale
cor
by emphysema
Borovich was disabled
no under-
because there was
refused to award benefits
but
remand
The Board ordered the
be-
lying pneumoconiosis.
emphysema by
did not consider whether
cause
referee
under the
occupational
as an
disease
compensable
itself was
There,
inconsistency
finding
disability
was the
Act.
corresponding award of benefits.
without
one of
remand as in accord with
We affirmed the
when the
scope
narrow
standards
governing
viz.
proof,
with the
party
burden
against
decision is
Jasper v.
“internally” consistent.
findings
are
whether
Board,
Appeal
498 Pa.
v. Workmen’s Com
Roadway Express
(1982);
A.2d 1212
Board,
Ct.
pensation
54 Pa.Commonwealth
sup
which
inconsistency
An internal
Although this in all four cases was reviewed the entire record when cy, on the same inconsistency of result there was an properly here Thus, seems to us the Board it evidence. its function of function as well as exercised it remanded process when the administrative supervising in cases the result to reconcile proceedings for further foundations the same factual precisely on depended which it at the same time. and were before *7 appropri- remand order was original Because bodies, the Board ate, the facts before both Court, Rapkin, found Referee were those from the the case on remand considered the referee who claimants after to all four He denied benefits Board. which showed impartial expert from an hearing evidence four claim- common to all in the the silica levels and that therefore a silica hazard did not constitute ants Thus, referee’s could not awarded.6 be compensation must stand. decision Court is reversed. of Commonwealth
The order part by in justified its reversal of the Board 6. Commonwealth reviewing under the a case filed noting believed it was that the Board misconception was not Occupational Act. The Board's Disease cases, instance, only on but when it remanded present in the first misconception not based on this Its remand was its second review. review The Board’s mistaken results. but on the inconsistent novo under the standards for review was de findings Rapkin’s Referee governing of a review appropriate standard Act. The the Disease in however, cases, is whether there compensation of benefits in denial evidence, a disregard competent arbitrary capricious an novo than the de to these claimants standard less beneficial evident, therefore, that had incorrectly It is exercised. Board have affirmed proper review it would limited Board exercised its Thus, sending case purpose in this is no there decision of the referee. already reviewed because it has a third time the Board for to reasoning that necessary. It is on similar than in more detail record argument were denied and Resuta’s appellees Pesta ZAPPALA, J., files a majority opinion joins NIX, C.J., in concurring opinion which McDermott, j., join. in
LARSEN, J., dissenting opinion which files PAPADAKOS, J., joins.
ZAPPALA, Justice, concurring. opinion, compelled I am majority I in the join
While of the Board. powers the review separately clarify write Act, 77 P.S. “... the board 423 of the Section Under § if not of fact of the referee disregard findings may proper evidence it deem by competent supported if evidence, added). Since hear other (emphasis ....” may evidence”, follows logically it hear “other may the Board give impartial expert an may appoint the Board under Accordingly, issue. a relevant regarding evidence action of the case, I see no error of this the facts ap- referee and the matter a new remanding expert. impartial an pointing McDERMOTT, J., join
NIX, C.J., and concurring opinion. Justice,
LARSEN, dissenting. awarding supported record original As the I dissent. widow), I Croll, (now to his Evelyn Henry 301(e), presumption that their P.S. § of the Section benefit *8 further. employment need not be addressed out of their disease arose of the four presumption into account in each The referee took this before him: claims exposed to a silica hazard that he was claimant testifies When a occupation or employed was in an shows that he when a claimant hazard, weight great must be industry exists a silica in which there bears testimony, that a defendant and the burden accorded to that bar, large In the case overcoming is a one. convincing evidence by clear and has shown defendant is not hazard at Dorr-Oliver regarding a silica evidence claimant’s accepted. and cannot be credible Accord, Dorr-Oliver, (1/10/83). 20, Inc. Finding v. of Fact Dorr-Oliver, (1/10/83); Finding 17, of Fact Kay Inc. Finding v. of Fact 20, v. Dorr-Oliver, (1/12/83); Finding of Fact Inc. Pesta v. (1/12/83). Inc. remand, To original of benefits. affirm the award would proceedings the prior there no intrinsic error when opportunity purpose giving employer a second for the matter, rights. process violated Croll’s due litigate PAPADAKOS, J., dissenting opinion. joins in this A.2d GROUP, Appellant, GAS CONSUMERS
PROCESS PUBLIC UTILITY PENNSYLVANIA COMMISSION, Appellee, PA, Barasch, Advocate of Intervenor. M. Consumer David Pennsylvania. Supreme Court Argued Dec. 1985. Decided June