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JOHN W. MYERS AND WORKMEN'S COMPENSATION APPEAL BOARD v. INTER-STATE TILE AND MANTEL CO. (09/22/80)

decided: September 22, 1980.

JOHN W. MYERS AND WORKMEN'S COMPENSATION APPEAL BOARD, APPELLANTS,
v.
INTER-STATE TILE AND MANTEL CO., INC. APPEAL OF JOHN W. MYERS



No. 32 May Term, 1979, Appeal from Order of the Commonwealth Court, entered to No. 1870 C.D. 1977, dated December 27, 1978.

COUNSEL

John J. Krafsig, Harrisburg, for appellants.

Ronald M. Katzman, Harrisburg, for appellee.

Eagen, C. J., and O'Brien, Roberts, Nix, Larsen, Flaherty, and Kauffman, JJ.

Author: O'brien

[ 491 Pa. Page 209]

OPINION OF THE COURT

Appellant, John W. Myers, suffered a compensable injury on July 27, 1967, while in the course of his employment. He

[ 491 Pa. Page 210]

    received workmen's compensation benefits for total disability based upon various agreements with his employer, Inter-State Tile and Mantel Co., Inc., appellee herein. In October, 1973, employer filed a petition for termination of compensation. Following a hearing in March, 1974, Referee McClosky found that claimant suffered only partial disability and reduced his weekly compensation from $52.50 to $42.00. The Workmen's Compensation Appeal Board [Board] reversed the referee and held that claimant remained totally disabled.

Employer appealed to Commonwealth Court, which held that employer met his burden of proof and that the referee properly modified the finding of total disability to a finding of partial disability. However, the Court also stated that it could not presume that the referee had concluded that work, of the type that claimant could perform, was available merely because there was an award of partial disability. Freedman v. Crown Paper Board Co., 9 Pa. Commw. 260, 307 A.2d 466 (1973). Therefore, the case was remanded to the Board for resubmission to the referee for a finding on the issue of job availability. Workmen's Compensation Appeal Board v. Inter-State Tile and Mantel, 20 Pa. Commw. 178, 341 A.2d 218 (1975) (Inter-State Tile I).

Upon remand, the case was heard by a different referee, Referee Noonan. Referee Noonan offered to re-open the record for the receipt of additional testimony; however, claimant chose not to present additional testimony. Following legal argument, the referee, relying upon the record developed three years earlier, set forth findings of fact and conclusions of law and entered an order directing that claimant be compensated for fifty percent permanent partial disability. Claimant appealed to the Board which sustained the appeal and again remanded to the referee. Commonwealth Court granted employer's petition for review, reversed the Board and reinstated the order of Referee Noonan. Inter-State Tile and Mantel Co., Inc. v. Workmen's Compensation Appeal Board, 39 Pa. Commw. 429, 395 A.2d 681 (1978) (Inter-State Tile II). We granted claimant's petition for allowance of appeal; we now affirm.

[ 491 Pa. Page 211]

Appellant argues that employer's appeal to Commonwealth Court from the Board's order remanding this matter to the referee was interlocutory, and therefore, the appeal should not have been granted. Although remand orders of the Board are interlocutory and as a general rule not appealable, three exceptions have developed,*fn1 as set forth in American Can Co. v. Workmen's Compensation Appeal Board, 37 Pa. Commw. 169, 389 A.2d 263 (1978). Commonwealth Court relied upon the exception first enunciated in United Metal Fabricators, Inc. v. Zindash, 8 Pa. Commw. 339, 301 A.2d 708 (1973), where the court stated that an appeal of a remand order should be granted when an examination of the record reveals that no conclusion other than that reached by the referee can be supported. In applying this exception to the instant case, Commonwealth Court recognized that the 1972 Amendments to Section 423 of The Pennsylvania Workmen's Compensation Act, Act of June 2, 1915, P.L. 736, as amended, 77 P.S. ยงยง 853, 854 [Act], imposed stricter limitations on the Board's capacity to remand cases to referees for the taking of further evidence, as interpreted in Forbes Pavilion Nursing Home, Inc. v. ...


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