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UNITED METAL FABRICATORS v. ZINDASH (03/16/73)

decided: March 16, 1973.

UNITED METAL FABRICATORS, INC., ET AL.
v.
ZINDASH, ET AL.



Appeal from the Order of the Workmen's Compensation Appeal Board in case of Nick Zindash v. United Metal Fabricators, Inc. and Pennsylvania Manufacturers' Association Insurance Company, No. A-64477.

COUNSEL

Edward J. Kuyat, Jr., with him Ayers, Hager, Kuyat & Walker, for appellants.

No appearance for appellee.

Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Opinion by Judge Wilkinson.

Author: Wilkinson

[ 8 Pa. Commw. Page 340]

This is an appeal from an order of the Workmen's Compensation Appeal Board remanding the case to the Referee for the purpose of taking additional testimony. The Referee had denied compensation on the basis that no "accident" within the meaning of the Workmen's Compensation Act of June 2, 1915, P.L. 736, as amended, had occurred, and further that the injury alleged by claimant was the result of a pre-existing condition caused by an earlier injury.

In its opinion, the Appeal Board indicated that, upon remand, the Referee was to take further testimony

[ 8 Pa. Commw. Page 341]

    as to the relationship between the earlier injury and the injury now alleged by claimant, and that an impartial physician was to be appointed.

An order of the Board remanding a case to a Referee has been considered interlocutory and hence unappealable. Harris v. No. 1 Contracting Corporation of Delaware, et al., 215 Pa. Superior Ct. 524, 258 A.2d 663 (1969).

The Superior Court has also ruled, however, that an order of a Court of Common Pleas remanding a case to the Board could be reviewed and the lower court directed to decide the case on the merits. Hale v. Metalweld, Inc. et al., 209 Pa. Superior Ct. 298, 228 A.2d 217 (1967). The Superior Court there made an independent review of the record and deemed it sufficient for a final determination.

By the Act of February 8, 1972, P.L. (No. 12), this Court now receives appeals directly from the Workmen's Compensation Appeal Board without an initial determination by the Court of Common Pleas. Because of this abbreviated review now afforded Workmen's Compensation cases, we find the decision in Hale more appropriate for determining whether a remand order of the Board can be reviewed by this Court.

Thus, a close examination of the record leads us to conclude that not only was there sufficient evidence before the Board to permit a decision on the merits, indeed, no other conclusion could be supported but that of the Referee, and that no purpose except delay would be served by a rehearing before the Referee, especially when it was not sought by claimant. The facts here are quite different from Besco v. General Woodcraft and Foundry, et al., 7 Pa. ...


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