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NEW ENTERPRISE STONE AND LIME CO. v. COMMONWEALTH PENNSYLVANIA (05/02/79)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: May 2, 1979.

NEW ENTERPRISE STONE AND LIME CO., INC. AND PENNSYLVANIA MANUFACTURERS' ASSOCIATION INSURANCE COMPANY, PETITIONERS
v.
COMMONWEALTH OF PENNSYLVANIA, WORKMEN'S COMPENSATION APPEAL BOARD AND WALLACE T. HARCLERODE, RESPONDENTS

Appeal from the Order of the Workmen's Compensation Appeal Board in case of Wallace T. Harclerode v. New Enterprise Stone & Lime Co., No. A-72065.

COUNSEL

David P. Andrews, with him Patterson, Evey, Routch, Black & Behrens, for petitioners.

Walter Marian, for respondents.

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

Author: Mencer

[ 42 Pa. Commw. Page 376]

On April 11, 1969, Wallace T. Harclerode (claimant), during the course of his employment, was in a truck accident, as a result of which he sustained a cerebral concussion and a contusion of his back. Workmen's compensation payments were made to the claimant pursuant to a compensation agreement from April 12, 1969 to May 12, 1969, when claimant returned to work.

On October 12, 1971, the claimant filed a reinstatement petition, alleging that he was unable to perform any strenuous type of physical labor. Hearings were held before a referee at which Dr. John Deffibaugh testified for the claimant and Dr. S. Victor King testified for the employer. Following the hearings, the referee dismissed the petition for reinstatement after

[ 42 Pa. Commw. Page 377]

    finding that "[a]ny loss of earnings and any inability to work suffered by the claimant after May 12, 1969 [was] not the result of his accidental injury of April 11, 1969."

On claimant's appeal to the Workmen's Compensation Appeal Board (Board), the first referee's decision was set aside and the case was remanded for further medical testimony by an appointed impartial expert. Based on the testimony of the impartial expert, a second referee ruled that claimant was entitled to compensation for temporary total disability beginning May 27, 1971. The decision of the second referee was affirmed by the Board and the present appeal followed. We reverse.

This Court, in Forbes Pavilion Nursing Home, Inc. v. Workmen's Compensation Appeal Board, 18 Pa. Commonwealth Ct. 352, 336 A.2d 440 (1975), interpreted the 1972 amendments to Section 423 of The Pennsylvania Workmen's Compensation Act*fn1 as imposing upon the Board stricter limitations on its former wide capacity to remand cases to referees for further taking of evidence. We held that the new provisions empowered the Board to remand only when "the referee's findings are not supported by competent evidence" or when "the referee [has] failed to make a finding on a crucial issue necessary for the proper application of the law." Id. at 358, 336 A.2d at 445. In this case, the medical testimony of Dr. King for the employer constitutes competent and comprehensive evidence upon which the first referee properly based his finding.*fn2 Nor did the first referee fail to make a finding on any crucial issue.

[ 42 Pa. Commw. Page 378]

Therefore, by the Forbes rule the Board erroneously remanded*fn3 and we are compelled to reverse.

[ 42 Pa. Commw. Page 379]

Order

And Now, this 2nd day of May, 1979, the order of the Workmen's Compensation Appeal Board, under date of December 9, 1977, is hereby reversed, and Reinstatement Petition No. 181-14-6960 is hereby dismissed.

Disposition

Reversed.

Dissenting Opinion by Judge Craig:

This case represents to me a situation which presents considerable difficulty in connection with the application of the doctrines of Forbes Pavilion Nursing Home, Inc. v. Workmen's Compensation Appeal Board, 18 Pa. Commonwealth Ct. 352, 336 A.2d 440 (1975). The logic of the excellent opinion of Judge Blatt in Forbes Pavilion cannot be denied.

However, in the present case, the Board, although conceding the competence of the expert witness for the employer, felt that review by an impartial expert witness was necessary to provide "sufficient competent evidence to provide a fully-rounded view of the issue."

We should be inclined toward a flexible view and a liberal interpretation of the Board's power to remand for impartial medical reexamination. Such an approach is analogous to the very broad discretion which our procedural rules accord to a trial judge with respect to calling upon impartial expert witnesses. See Pa. R.C.P. No. 1515.

Therefore, I would uphold the Board's own broad interpretation of its power in this instance.


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