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MIKE GOGA AND WORKMEN'S COMPENSATION APPEAL BOARD v. ISLAND CREEK COAL CO. AND OLD REPUBLIC INSURANCE CO. (07/14/76)

decided: July 14, 1976.

MIKE GOGA AND WORKMEN'S COMPENSATION APPEAL BOARD
v.
ISLAND CREEK COAL CO. AND OLD REPUBLIC INSURANCE CO., APPELLANTS



Appeal from the Order of the Workmen's Compensation Appeal Board in case of Mike Goga v. Island Creek Coal Company, No. A-70302.

COUNSEL

Michael D. McDowell, with him Hirsch, Weise & Tillman, for appellants.

James A. Kudasik, with him Kudasik & Upor, for appellee.

President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Opinion by Judge Mencer. Judge Rogers did not participate in the decision in this case.

Author: Mencer

[ 25 Pa. Commw. Page 465]

Island Creek Coal Co. (Island Creek) and its insurer filed before the Workmen's Compensation Appeal Board (Board) a petition for the termination of benefits payable to Mike Goga (Goga). A referee granted Island Creek's petition, and on appeal the Board remanded to the referee for the purpose of taking additional testimony. Island Creek has appealed the remand order to this Court. Goga has filed a motion to quash, which is the subject of this opinion.

Generally, an order of the Board remanding a case to a referee for the purpose of taking additional testimony is interlocutory and an appeal therefrom is premature. Royal Pioneer Industries, Inc. v. Workmen's Compensation Appeal Board and Battistone, 11 Pa. Commonwealth Ct. 132, 309 A.2d 831 (1973). We have recognized only two exceptions to this general

[ 25 Pa. Commw. Page 466]

    rule. See Riley Stoker Corporation v. Workmen's Compensation Appeal Board and Jeeter, 9 Pa. Commonwealth Ct. 533, 308 A.2d 205 (1973), and United Metal Fabricators, Inc. v. Zindash, 8 Pa. Commonwealth Ct. 339, 301 A.2d 708 (1973). Neither of these exceptions is relevant here.

In Jeeter, the appeal to the Board had been untimely filed. We therefore held that no useful purpose could be served in allowing the case to continue through the administrative process. Here there is no similar glaring procedural irregularity. Since Island Creek has in fact conceded the inapplicability of Jeeter, we need not further consider Goga's contentions in this regard.

In Zindash, we noted that, when the evidence before the Board is sufficient for it to make a decision on the merits, and when that evidence permits only one possible result, then an appeal is properly before this Court. Both parties have ably briefed the application of Zindash to the present case. However, the record requires us to reject any application of Zindash here.

At the hearing before the referee the ...


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