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ATLAS CHAIN & PRECISION PRODUCTS v. COMMONWEALTH PENNSYLVANIA (04/24/79)

decided: April 24, 1979.

ATLAS CHAIN & PRECISION PRODUCTS, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, WORKMEN'S COMPENSATION APPEAL BOARD AND STANLEY GROCHAL, RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in case of Stanley Grochal v. Atlas Chain & Precision Products, No. A-73760.

COUNSEL

Joseph P. Lenahan, with him John R. Lenahan, Jr., and Lenahan, Dempsey, Murphy & Piazza, for petitioner.

William R. Keller, with him Theodore A. Evans, for respondent.

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

Author: Wilkinson

[ 42 Pa. Commw. Page 231]

In this case, petitioner (employer) appeals an order of the Workmen's Compensation Appeal Board (Board) affirming a referee's decision on remand which denied the employer's termination petition and reinstated benefits to respondent (claimant). We reverse.

Claimant sustained a work-related injury on September 12, 1973 for which the parties executed a compensation agreement. On November 12, 1975, employer filed a second petition for termination.*fn1 The only testimony offered at the July 1, 1976 hearing on this second petition was that of claimant's treating physician who testified the claimant continued to be disabled from lumbar disc syndrome. As it turned out, the employer's medical witness, an orthopedic surgeon, was unable to attend the hearing necessitating the taking of his deposition. In sharp contrast to the treating physician's testimony the orthopedic surgeon expressed his opinion that claimant did not suffer from the effects

[ 42 Pa. Commw. Page 232]

    of any continuing disability and could return to his previous employment situation. The referee's August 19, 1976 decision granted the petition for termination effective November 3, 1975.

In his appeal to the Board from the decision terminating compensation, claimant contended among other things that he had not had an opportunity to be heard and had been misled into waiting to present additional evidence. The Board remanded the case to the referee "to permit the presentation of additional testimony. . . ."*fn2 On remand the referee reinstated benefits and the Board affirmed.

Since we are in agreement with employer's position that the Board improperly ordered this case remanded we will not address any other issues raised in the petition for review.

The case of Forbes Pavilion Nursing Home, Inc. v. Workmen's Compensation Appeal Board, 18 Pa. Commonwealth Ct. 352, 336 A.2d 440 (1975) establishes the rule that the Board lacks authority to remand where all necessary findings of fact made by a referee are supported by substantial competent evidence. Our review of the record in this case leaves us with no doubts ...


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