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ALBERT BOROVICH v. COLT INDUSTRIES (01/30/81)

decided: January 30, 1981.

ALBERT BOROVICH, APPELLANT,
v.
COLT INDUSTRIES, APPELLEE, AND COMMONWEALTH OF PENNSYLVANIA *FN*



No. 80-1-4, Appeal from the Order of the Commonwealth Court, at No. 1311 C.D. 1978, reversing a finding of the Workmen's Compensation Appeal Board, at A-73986.

COUNSEL

William R. Caroselli, McArdle, Caroselli, Spagnolli & Beachler, Pittsburgh, for appellant.

Joseph A. Fricker, Jr., Pittsburgh, for Colt Industries.

O'Brien C. J., and Roberts, Nix, Larsen, Flaherty and Kauffman, JJ. Roberts, J., concurred in the result.

Author: Nix

[ 492 Pa. Page 374]

OPINION

This is an appeal from an order of the Commonwealth Court, 44 Pa. Commw. 493, 403 A.2d 1372, reversing an award of the Workmen's Compensation Appeal Board to appellant under the Pennsylvania Workmen's Compensation Act.*fn1 The appellant, pursuant to 42 Pa. C.S.A. § 724(a), petitioned this Court to review the Commonwealth Court's decision. The petition to review was granted, and after the filing of briefs and oral argument we now reverse the order of the Commonwealth Court for the reasons that follow.

Albert Borovich, appellant, filed a complaint against Colt Industries, his former employer, and the Commonwealth of Pennsylvania alleging total disability due to the contracting of the diseases of silicosis, anthraco-silicosis and pulmonary emphysema arising from his employment. The matter, after the filing of responsive pleading, was referred to a Referee, who, upon hearing, determined that appellant was not entitled to recover compensation under the Act. Appellant

[ 492 Pa. Page 375]

    appealed the Referee's finding to the Workmen's Compensation Appeal Board. The Board remanded the matter to the Referee with the direction that the Referee, "make additional findings" relating to appellant's entitlement under section 108(n) of the Act.*fn2 After remand the Referee filed a second decision in which he found that appellant was suffering from pulmonary emphysema as a result of exposure to various dusts and fumes during his employment and determined that appellant was entitled to compensation. The employer, Colt Industries, appealed to the Board which affirmed the Referee's conclusions. An appeal was thereupon taken to the Commonwealth Court.

The Commonwealth Court's reversal was based on two grounds: (a) that the Workmen's Compensation Appeal Board had improperly remanded the Referee's first decision and (b) that the Referee's second decision was in error because he contradicted his earlier findings of fact without having the benefit of further testimony on the subject. We disagree with both of these conclusions.

Turning first to the propriety of the Board's remand, § 419 of the Act, as amended, provides in pertinent part:

The board may remand any case involving any question of fact arising under any appeal to a referee to hear evidence and report to the board the testimony taken before him or such testimony ...


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