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BETHLEHEM MINES CORPORATION v. COMMONWEALTH PENNSYLVANIA (12/28/78)

decided: December 28, 1978.

BETHLEHEM MINES CORPORATION, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, WORKMEN'S COMPENSATION APPEAL BOARD AND NICK PADOVICH, RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in case of Nick Padovich v. Bethlehem Mines Corporation, No. A-73770.

COUNSEL

Arthur M. Wilson, with him Greenlee, Richman, Derrico & Posa, for petitioner.

Benjamin L. Costello, for respondent, Padovich.

Sandra S. Christianson, Assistant Attorney General, for respondent, Commonwealth.

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

Author: Wilkinson

[ 39 Pa. Commw. Page 443]

Petitioner appeals an order of the Workmen's Compensation Appeal Board (Board) setting aside a referee's disallowance of claimant's petition and remanding for the appointment of an impartial physician and the making of more specific findings of fact.*fn1 We reverse.

Claimant was last employed as a coal miner on January 2, 1976, having worked for various coal companies in this state for approximately 40 years. Claimant's petition alleged total and permanent disability from anthraco-silicosis and/or coal worker's pneumoconiosis as of February 20, 1976.*fn2

A referee found in a decision dated July 26, 1977, that claimant was neither totally nor partially disabled as a result of pneumoconiosis or any other occupational disease. Pursuant to an appeal by the claimant, the Board by its order dated March 15, 1978, set aside the referee's disallowance and ordered the referee to appoint an impartial physician to testify and make more specific findings of fact at a remand hearing. Petitioner's appeal challenges this action taken by the Board.

We are asked again to examine the availability of appeal to our Court from orders of the Board remanding

[ 39 Pa. Commw. Page 444]

    cases to a referee. Judge Blatt has recently reiterated the general rule that "an order of the Board remanding a case to a referee is interlocutory and an appeal to this Court from such an order will be quashed." American Can Co. v. Workmen's Compensation Appeal Board, 37 Pa. Commonwealth Ct. 169, 171, 389 A.2d 263, 263-64 (1978). To this general rule, a number of exceptions have evolved as the Court in American Can Co., supra, observed:

An appeal will not be quashed if the Board had no jurisdiction to remand because the appeal to it was not timely, Riley Stoker Corp. v. Workmen's Compensation Appeal Board, 9 Pa. Commonwealth Ct. 533, 308 A.2d 205 (1973), or if there could be no result other than that reached by the referee on the basis of the record, United Metal Fabricators, Inc. v. Zindash, 8 Pa. Commonwealth Ct. 339, 301 A.2d 708 (1973). We will also allow an appeal from a remand order where the Board's action is based on a clear error of law which would ...


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