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FORBES PAVILION NURSING HOME v. WORKMEN'S COMPENSATION APPEAL BOARD AND JUANITA VIRGINIA HARDEN (CRITTENDEN) (04/16/75)

decided: April 16, 1975.

FORBES PAVILION NURSING HOME, INC. AND SECURITY INSURANCE COMPANY OF HARTFORD, INSURANCE CARRIER, APPELLANTS,
v.
WORKMEN'S COMPENSATION APPEAL BOARD AND JUANITA VIRGINIA HARDEN (CRITTENDEN), APPELLEES



Appeal from the Order of the Workmen's Compensation Appeal Board in case of Juanita V. Harden Crittenden v. Forbes Pavilion Nursing Home, Inc., No. A-61607.

COUNSEL

Elmer G. Klaber, for appellants.

Alexander J. Pentecost, with him James N. Diefenderfer, for appellees.

Judges Crumlish, Jr., Rogers and Blatt, sitting as a panel of three. Opinion by Judge Blatt.

Author: Blatt

[ 18 Pa. Commw. Page 353]

This Court, in Universal Cyclops Steel Corporation v. Krawczynski, 9 Pa. Commonwealth Ct. 176, 305 A.2d 757 (1973) held that without taking additional evidence The Workmen's Compensation Appeal Board (Board) lacks power on appeal to substitute its own findings of fact for those of the referee where the referee's findings are supported by substantial competent evidence. In this action, we are asked: When may the Board take additional evidence? When may the Board appoint an impartial expert witness? And when may the Board remand to another referee for the taking of such evidence?

Here the claimant petitioned to set aside the final

[ 18 Pa. Commw. Page 354]

    receipt she had executed*fn1 to relieve her employer, the Forbes Pavilion Nursing Home, Inc. (employer), of any further obligation for injuries sustained in an accident while in the course of her employment.*fn2 Referee Rossi held hearings at which both the claimant and the employer presented medical witnesses on the critical issue of whether or not she still suffered a disability. Upon this testimony, Referee Rossi dismissed the petition concluding as a fact that "all disability arising out of the original accident of March 29, 1967, ceased and terminated as of June 10, 1967, the day the claimant returned to work." The claimant appealed to the Board which ordered: "That the Findings of Fact, Conclusions of Law and Order of Disallowance of Referee Rossi be vacated and set aside and that an impartial expert be appointed to examine the Claimant and report his findings to the referee, and that the case is hereby remanded to the Referee." The Board appointed Dr. Marryshow to serve as the impartial expert referred to in its order and, on the remand to him, Referee Markovitz took the expert's testimony after he had examined the claimant. Then, apparently but not conclusively considering the entire record, Referee Markovitz made his own finding of fact that the disability still continued, drew conclusions of law and ordered that the final receipt be set aside. Again the employer appealed to the Board, which affirmed the second referee without taking any additional evidence. This appeal followed.

As always in these cases our scope of review is limited to a determination of whether constitutional rights were violated, errors of law were committed, or necessary findings of fact were unsupported by substantial

[ 18 Pa. Commw. Page 355]

    evidence. Reed v. Glidden, 13 Pa. Commonwealth Ct. 343, 318 A.2d 376 (1974). The employer here asserts that the Board misapprehended its scope of review and authority at every stage of the proceeding.

The actions of the Board here are all governed, of course, by the 1972 amendments to The Pennsylvania Workmen's Compensation Act*fn3 (Act). Universal Cyclops Steel Corporation v. Krawczynski, 9 Pa. Commonwealth Ct. 176, 305 A.2d 757 (1973). The employer charges that, inasmuch as Referee Rossi's finding are supported by competent evidence, the Board had neither the power to vacate them nor to remand the case to a second referee designated to hear the testimony of the Board-appointed impartial expert. In Universal Cyclops, we held that, when supported by competent evidence, the Board could not vacate findings by a referee without taking additional evidence. We must now ask ...


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