40 Pa. Commw. 192 | Pa. Commw. Ct. | 1979
Opinion by
Republic Steel Corporation (Republic) has .appealed from an order of the Workmen’s Compensation Appeal Board setting aside a referee’s award of benefits to Joseph Massimino and remanding the case to the referee for the appointment of an impartial physician. The general rule is that an order of the Board
Massimino worked in the coal mining industry for 47 years and was last so employed by Republic. He filed a claim petition under The Pennsylvania Workmen’s Compensation Act
Republic appealed. The Workmen’s Compensation Appeal Board observed that although Massimino’s medical witness in a written report stated Massimino was totally disabled by coal worker’s pneumoconiosis, he later testified that he believed that Massimino suffered from coal worker’s pneumoconiosis without further testifying that Massimino was disabled thereby. It further observed that the same witness was “infirm” in his diagnosis of coal worker’s pneumoconio
In order to fully understand the Board’s decision and Bepublic’s thesis, it is necessary to explain that Massimino’s medical witness’s written report was offered into evidence and was admitted by the referee over Bepublic’s objection to it on the ground of hearsay and for want of opportunity to cross-examine. The written report included the doctor’s opinion that Massimino was totally disabled due to coal worker’s pneumoconiosis. The same medical witness was later, apparently by agreement of the parties, deposed and a full opportunity for cross-examination then afforded. No further ruling with respect to the admissibility of the written report was made by the referee or, on appeal, by the Board although its admission by the referee was assigned as error by Bepublic in its appeal to the Board. However, it seems to us that the Board’s reference to the discrepancy between the doctor ’s written report and his testimony with respect to whether Massimino was totally disabled by coal worker’s pneumoconiosis .and the Board’s conclusion that the referee’s award was not supported by substantial competent evidence taken together strongly suggest that the Board concluded that the written report was not to be considered either because it was improperly admitted or because it was supplanted in its entirety by the doctor’s later deposition. Bepublic ignores this subject as being a basis for the Board’s conclusion that there was not substantial evidence in the record and refers to the Board’s observation that the medical witness’s testimony that Massimino suffered from coal
There are’ a number of things fatally wrong with Republic’s thesis. First, as we have said, the Board seems to us to have set aside the award and remanded for impartial medical evidence because Massimino failed to prove any disability due to coal worker’s pneumoconiosis.’ The effect of this failure was surely to produce a record which did not contain substantial competent evidence supporting a necessary finding. We held in Forbes Pavilion Nursing Home, Inc. v. Workmen’s Compensation Appeal Board, 18 Pa. Commonwealth Ct. 352, 336 A.2d 440 (1975), that while the Board may not remand for impartial medical evidence where the referee’s award is supported by sub
Next, we do not agree that Section 424 of the Act means that the Board may not in addition to reversing the order appealed from, remand matters for additional evidence simply because the appellant has denominated the point raised on appeal as an error of law. Assuming that the referee committed an error of law in not excluding the claimant’s doctor’s testimony that the claimant suffered from coal worker’s ■pneumoconiosis (although Republic made no objection or motion to strike at the hearing), the ultimate result ■of a correction of that assumed error would be the creation of a record lacking substantial competent evidence supporting the referee’s award — bringing us back to the principle that the Bo arel may remand where the referee’s award is not supported by substantial competent evidence.
Appeal quashed.
Order
And Now, this 30th day of January, 1979, it is ordered that the appeal of Republic Steel Corporation be and it is hereby quashed.
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §1 et seq.