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decided: November 29, 1979.


Appeal from the Order of the Workmen's Compensation Appeal Board in case of Frank Koperna v. Bound Brook Corporation, No. A-74268.


James P. Bradley, for petitioner.

Stephen P. Ellwood, with him Lester Krasno, for respondents.

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

Author: Blatt

[ 47 Pa. Commw. Page 455]

On August 6, 1974, Frank Koperna (claimant) was injured during the course of his employment. Workmen's compensation payments were made to him pursuant to a compensation agreement until June 16, 1975 when he returned to work. On July 16, 1976, the employer, Bound Brook Corporation, filed a petition for termination of the compensation agreement

[ 47 Pa. Commw. Page 456]

    alleging that the claimant had returned to work at his pre-injury earnings. After several hearings the referee granted the employer's petition concluding that all disability relating to the initial injury had ceased as of June 16, 1975. The claimant appealed to the Workmen's Compensation Appeal Board (Board) alleging that the referee's findings were not supported by substantial evidence and in addition that he was prejudiced by the fact that the referee rendered a decision before the claimant had been afforded an opportunity to submit a brief. The Board set aside the referee's findings and order and remanded the matter to the referee to give the claimant an opportunity to "complete its case and to allow any additional evidence offered by either party." The employer appeals from that order.

The general rule is, of course, that an order of the Board remanding a case to a referee is interlocutory and that 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, 389 A.2d 263 (1978). However, in Forbes Pavilion Nursing Home, Inc. v. Workmen's Compensation Appeal Board, 18 Pa. Commonwealth Ct. 352, 336 A.2d 440 (1975) we have 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 the taking of additional evidence, and have held that the new provisions empower 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

[ 47 Pa. Commw. Page 457]

    application of the law." Forbes, supra, at 358, 336 A.2d 445.

In the instant case, the claimant has alleged that his ailments subsequent to his injury were causally connected to his work related injury, and he presented supporting medical testimony from his physician. The employer's physician did testify unequivocally, however, that the claimant's maladies could not have been caused by his work-related injury,*fn2 and

[ 47 Pa. Commw. Page 458]

    the resolution of conflicts in the testimony of expert witnesses is, of course, within the referee's province. Workmen's Compensation Appeal Board v. Phillips, 29 Pa. Commonwealth Ct. 613, 372 A.2d 63 (1977). We believe that the referee was clearly acting within his authority when he accepted the employer's doctor's testimony, and this competent evidence was therefore on the record in support of his findings. The fact that the claimant failed to submit a brief was not in itself a proper ground for granting the remand,*fn3 for the record is devoid of any evidence whatsoever that the claimant was denied the opportunity

[ 47 Pa. Commw. Page 459]

    to submit a brief. It appears, rather, that he simply failed to do so.

For the foregoing reasons*fn4 we believe the order of the Board remanding the case must be reversed and that the decision of the referee, based as it is on substantial evidence must be reinstated.


And Now, this 29th day of November, 1979, the order of the Workmen's Compensation Appeal Board remanding the case is reversed and the decision of the referee is hereby reinstated.


Remand order reversed. Order of referee reinstated.

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