Appeal from the Order of the Workmen's Compensation Appeal Board in case of Philip Vignoli v. Mathies Coal Company and Commonwealth of Pennsylvania, No. A-70603.
Edward C. Schmidt, with him Andrew Rose, and Rose, Schmidt and Dixon, for appellant.
Amiel B. Caramanna, Jr., with him Albert S. Diaz, Mary Ellen Krober, Assistant Attorney General, and James N. Diefenderfer, for appellees.
Judges Crumlish, Jr., Kramer and Mencer, sitting as a panel of three. Opinion by Judge Crumlish, Jr.
This appeal comes to us as the result of a decision of the Workmen's Compensation Appeal Board (Board) affirming a referee's denial of benefits to Philip Vignoli (Claimant).
On October 25, 1974, Claimant filed a claim petition alleging that he had become totally disabled due to his "exxposure [sic] to dusts while working in the coal mines" of Mathies Coal Company (Mathies) and as a result of the exposure, had incurred "anthraco-silicosis and/or coal worker's pneumoconiosis." After hearings held on March 18 and May 6, 1975, the referee
assigned to the case made the following finding of fact which states, in part:
4. The claimant has simple coal worker's pneumoconiosis and he is not totally and permanently disabled therefrom.
The referee reiterated this finding within his conclusions of law, denied benefits to Claimant, and dismissed the claim petition. In his appeal to the Board, Claimant disputed the referee's findings and pointed to medical testimony which he believed supported his notion of the existence of total and permanent disability. The Board, although agreeing that substantial competent medical evidence was presented to support the finding of the referee denying total disability, nevertheless concluded that the referee also should have considered the possibility of partial disability. The Board, therefore, remanded the case to the referee so that necessary findings of fact relevant to a determination of partial disability could be made.
Mathies has appealed contending that remand is improper, that any argument on behalf of Claimant as to partial disability has been waived, and finally that the referee implicitly ruled out any possibility of partial disability in his findings of fact.
Claimant has filed no motion to quash but, for reasons hereinafter related, we must consider whether, in its present context, an appeal may ...