Appeal, No. 586 C.D. 1978 | Pa. Commw. Ct. | Sep 12, 1979
Opinion by
A workmen’s compensation referee found that tbe disability suffered by Mario Diaz (claimant), as a result of bis work-related injury of December 26, 1973, ceased as of March 4, 1974. Thus, tbe referee found that Doylestown Processing Co. (employer) bad sustained its burden of proving that tbe claimant’s disability bad ceased and granted tbe employer’s petition for termination. Tbe Workmen’s Compensation Appeal Board (Board), without taking evidence, set aside tbe determination of tbe referee and remanded tbe case to tbe referee to provide tbe claimant “an opportunity to complete a myleogram [sic] and to allow tbe parties to present any other additional evidence they desire. ’ ’ Tbe employer has filed an appeal from this decision of remand,
In Merryman v. United States Steel Corp., 26 Pa. Commw. 569" court="Pa. Commw. Ct." date_filed="1976-10-14" href="https://app.midpage.ai/document/merryman-v-united-states-steel-corp-1498626?utm_source=webapp" opinion_id="1498626">26 Pa. Commonwealth Ct. 569, 570, 365 A.2d 166-67 (1976), we stated:
This Court in Forbes Pavilion Nursing Home, Inc. v. Workmen’s Compensation Appeal Board, 18 Pa. Commw. 352" court="Pa. Commw. Ct." date_filed="1975-04-16" href="https://app.midpage.ai/document/forbes-pavilion-nursing-home-inc-v-workmens-compensation-appeal-board-6362306?utm_source=webapp" opinion_id="6362306">18 Pa. Commonwealth Ct. 352 336, A.2d 440 (1976), interpreted the 1972 amendments to [Tbe Pennsylvania Workmen’s .Compensation Act, Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §1 et seq.]2 as imposing upon tbe Workmen’s Compensation Appeal Board stricter limitations on its former wide capacity to remand cases to referees for fur*580 ther 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, Dr. Bendler testified for the employer and stated that he was “absolutely certain this man [claimant] does not have a herniated disc or any irritation from the low back associated with the herniated disc or any other abnormal process in the low back.” Further, Dr. Bendler testified that there was no finding of disability in claimant attributable to an accident on December 26, 1973. This medical evidence on behalf of the employer constitutes competent and comprehensive evidence upon which the referee could have based his finding. Also, the referee did not fail to make a finding on any crucial issue. Accordingly, applying the Forbes, supra, rule, the Board erroneously remanded.
We have often recognized that a remand order is interlocutory and therefore generally unappealable. The only exceptions to this rule are for appeals where the Board had no jurisdiction because the appeals from the referee were not timely, Riley Stoker Corp. v. Workmen’s Compensation Appeal Board, 9 Pa. Commw. 533" court="Pa. Commw. Ct." date_filed="1973-07-24" href="https://app.midpage.ai/document/riley-stoker-corp-v-workmens-compensation-appeal-board-6361368?utm_source=webapp" opinion_id="6361368">9 Pa. Commonwealth Ct. 533, 308 A.2d 205 (1973), for appeals where the record conclusively establishes that no result other than that reached by the referee could be reached, United Metal Fabricators, Inc. v. Zindash, 8 Pa. Commw. 339" court="Pa. Commw. Ct." date_filed="1973-03-16" href="https://app.midpage.ai/document/united-metal-fabricators-inc-v-zindash-6361226?utm_source=webapp" opinion_id="6361226">8 Pa. Commonwealth Ct. 339, 301 A.2d 708 (1973), and for appeals where the Board’s action is based on a clear error of law which would necessitate prolonged and fruitless proceedings, Flynn v.
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. Flynn v. Asten Hill Manufacturing Co., supra.
Therefore, we make the following
Order
And Now, this 12th day of September, 1979, the order of the Workmen’s Compensation Appeal Board, dated February 24, 1978, at No. A-73163, vacating and setting aside the referee’s findings of fact, conclusions of law and order terminating compensation to Mario Diaz and remanding to the referee, is hereby reversed.
During the more than two years during which this case was in litigation prior to the referee’s decision, the claimant did not undergo a myelogram or request the referee for a continuance to have such a test performed. Likewise, the referee did not deny any request by claimant for a continuance or further hearing to present additional testimony.
Sections 853 and 854 of the Act, 77 P.S. §§853, 854,