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WORKMEN'S COMPENSATION APPEAL BOARD COMMONWEALTH PENNSYLVANIA AND DAVID CAREY v. WALLACE MURRAY CORPORATION AND LIBERTY MUTUAL INSURANCE COMPANY (03/18/76)

decided: March 18, 1976.

WORKMEN'S COMPENSATION APPEAL BOARD OF THE COMMONWEALTH OF PENNSYLVANIA AND DAVID CAREY
v.
WALLACE MURRAY CORPORATION AND LIBERTY MUTUAL INSURANCE COMPANY, APPELLANTS



Appeal from the Order of the Workmen's Compensation Appeal Board in case of David Carey v. Wallace Murray Corporation, No. A-69693.

COUNSEL

Stephen J. Schofield, with him Joseph R. Thompson, for appellants.

Anthony J. Piazza, with him Joseph Cimino, John R. Lenahan, Joseph A. Murphy, Lenahan, Dempsey & Murphy, and James N. Diefenderfer, for appellees.

Judges Wilkinson, Jr., Mencer and Blatt, sitting as a panel of three. Opinion by Judge Wilkinson.

Author: Wilkinson

[ 24 Pa. Commw. Page 122]

Before this Court is an appeal from an order of the Workmen's Compensation Appeal Board (Board) which remanded a case to a referee for the purpose of taking additional testimony. We are compelled to quash the appeal.

[ 24 Pa. Commw. Page 123]

On August 25, 1972, appellants unilaterally terminated partial disability compensation payments they had been making to claimant-appellee pursuant to a supplemental compensation agreement executed in October, 1970.*fn1 One year later, on August 30, 1973, appellant corporation filed with the Board a petition to review the agreement alleging that the average weekly wage rate, upon which the partial disability payments were based, was miscalculated. An answer to the petition was filed by claimant-appellee in which he alleged that payments under the agreement had been improperly terminated by appellants, that penalties for such termination should be assessed against appellants, and that he was totally disabled.

A hearing was held by a referee who subsequently entered a decision finding that the weekly wage rate was not erroneously computed and that claimant-appellee became totally disabled on May 1, 1973. The referee ordered that compensation be paid claimant-appellee on a partial disability basis from August 26, 1972, to April 30, 1973, and on a total disability basis beginning May 1, 1973. The award of the referee is silent on whether penalties should be assessed against appellants.

Appellants appealed to the Board challenging the referee's award of total disability compensation. Claimant-appellee did not appeal the failure of the referee to consider the penalty issue. The Board held that the referee erred in awarding total disability benefits since

[ 24 Pa. Commw. Page 124]

    claimant-appellee was totally disabled due to causes unrelated to his original injury. However, the Board stated, on a review of the record, that claimant-appellee's physical condition had improved sometime between May 1, 1973, and April 2, 1974, thus allowing him to perform light work of a general nature. Consequently, the Board remanded the case to the referee to take additional testimony and make determinations regarding (1) when claimant-appellee was able to perform light work, and (2) whether penalties should be assessed against appellants pursuant to Section 413(b) of The Pennsylvania Workmen's Compensation Act, Act of June 2, 1915, P.L. 736, as amended, 77 P.S. ยง 774.1.*fn2

Appellants are now before this Court contending that the Board erred in remanding the case to the referee on the penalty issue. They assert that since claimant-appellee did not appeal the failure of the referee to make determinations regarding the assessment of penalties against them, that issue was not properly preserved for review before the Board. They further assert that since its provisions were not in existence at the time of ...


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