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decided: January 30, 1979.


Appeal from the Order of the Workmen's Compensation Appeal Board in case of Joseph Massimino v. Republic Steel Corporation and Commonwealth of Pennsylvania, No. A-72943.


Edward A. McFarland, with him Ralph A. Davies, and Thomson, Rhodes & Grigsby, for petitioner.

Terry C. Cavanaugh, with him Kenneth J. Yablonski, William C. O'Toole, and Sandra Christianson, Assistant Attorney General, for respondents.

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

Author: Rogers

[ 40 Pa. Commw. Page 193]

Republic Steel Corporation (Republic) has appealed from an order of the Workmen's Compensation Appeal Board setting aside a referee's award of benefits to Joseph Massimino and remanding the case to the referee for the appointment of an impartial physician. The general rule is that an order of the Board

[ 40 Pa. Commw. Page 194]

    remanding a matter to a referee is interlocutory and that an appeal from such an order should be quashed. American Can Company v. Workmen's Compensation Appeal Board, 37 Pa. Commonwealth Ct. 169, 389 A.2d 263 (1978). Republic argues that this case falls within an exception to the general rule applicable to cases where either under the undisputed facts (United Metal Fabricators, Inc. v. Zindash, 8 Pa. Commonwealth Ct. 339, 301 A.2d 708 (1973)), or clear law (Flynn v. Asten Hill Manufacturing Co., 34 Pa. Commonwealth Ct. 218, 383 A.2d 255 (1978)), but one result could obtain and the remand would merely cause fruitless further proceedings. After an examination of the record of these proceedings and the law we are satisfied that this case does not fall within the narrow exception mentioned and we will therefore quash Republic's appeal.

Massimino worked in the coal mining industry for 47 years and was last so employed by Republic. He filed a claim petition under The Pennsylvania Workmen's Compensation Act*fn1 alleging total and permanent disability from coal worker's pneumoconiosis. A referee awarded him compensation for total disability caused by coal worker's pneumoconiosis and assessed the award equally against the Commonwealth and Republic.

Republic appealed. The Workmen's Compensation Appeal Board observed that although Massimino's medical witness in a written report stated Massimino was totally disabled by coal worker's pneumoconiosis, he later testified that he believed that Massimino suffered from coal worker's pneumoconiosis without further testifying that Massimino was disabled thereby. It further observed that the same witness was "infirm" in his diagnosis of coal worker's pneumoconiosis.

[ 40 Pa. Commw. Page 195]

The Board concluded that "the determination of the referee is not based upon substantial competent evidence." As we have already noted, the Board remanded with directions that an impartial physician be appointed to examine Massimino and to testify concerning whether he suffered from pneumoconiosis and, if so, its cause and effect. Republic has appealed.

In order to fully understand the Board's decision and Republic's thesis, it is necessary to explain that Massimino's medical witness's written report was offered into evidence and was admitted by the referee over Republic's objection to it on the ground of hearsay and for want of opportunity to cross-examine. The written report included the doctor's opinion that Massimino was totally disabled due to coal worker's pneumoconiosis. The same medical witness was later, apparently by agreement of the parties, deposed and a full opportunity for cross-examination then afforded. No further ruling with respect to the admissibility of the written report was made by the referee or, on appeal, by the Board although its admission by the referee was assigned as error by Republic in its appeal to the Board. However, it seems to us that the Board's reference to the discrepancy between the doctor's written report and his testimony with respect to whether Massimino was totally disabled by coal worker's pneumoconiosis and the Board's conclusion that the referee's award was not supported by substantial competent evidence taken together strongly suggest that the Board concluded that the written report was not to be considered either because it was improperly ...

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