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GREAT ATLANTIC & PACIFIC TEA CO. v. COMMONWEALTH PENNSYLVANIA (10/27/81)

decided: October 27, 1981.

GREAT ATLANTIC & PACIFIC TEA CO., PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, WORKMEN'S COMPENSATION APPEAL BOARD AND ANDREW STUKA, RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in case of Andrew Stuka v. Great Atlantic & Pacific Tea Co., No. A-79381.

COUNSEL

William E. Wyatt, with him Richard G. Fine, Edwin A. Abrahamsen, Bialkowski, Fine & Bialkowski, for petitioner.

Jerome L. Cohen, for respondent, Andrew Stuka.

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

Author: Craig

[ 62 Pa. Commw. Page 268]

The employer*fn1 appeals from a Workmen's Compensation Appeal Board decision which reversed its own earlier remand order and affirmed the referee's dismissal of the employer's petition to modify the claimant's*fn2 compensation for total disability to compensation for partial disability.

In February, 1976, the claimant had sustained a disabling injury to his back; under a notice of compensation payable, the employer agreed to pay compensation for the resulting total disability. On February 14, 1978, the employer filed a modification petition alleging that the claimant's total disability had diminished to a 50% partial disability.

[ 62 Pa. Commw. Page 269]

After a hearing, the referee found that the claimant's total disability continued and dismissed the employer's petition. The employer appealed that decision to the board which, after reviewing the record, remanded the case for a clarification as to employment potentially available to the claimant.

At the remand hearing, the employer offered testimony regarding employment available to the claimant as of November 30, 1978, the date of the original modification hearing, but the claimant objected unless he could present new medical evidence relating to his medical condition on that same date.

So that the board could rule on that issue, the referee sustained the claimant's objection. However, after again reviewing the record, the board concluded that the issue of job availability was irrelevant because the basis for the referee's denial of the modification petition was his finding that the claimant remained totally disabled. Consequently, the board reversed its remand order.

The first question for our review is whether the board acted properly by reversing its remand order. This question involves the fact-finding powers of the board, as distinguished from its appellate scope of review. Forbes Pavilion Nursing Home, Inc. v. Workmen's Compensation Appeal Board, 18 Pa. Commonwealth Ct. 352, 336 A.2d 440 (1975). In Forbes, after determining that the board is authorized to remand only where it has express statutory authorization as an appellate body to take action resolving questions of fact, this court held that the board is without authority to remand if the record contains competent evidence to support a referee's finding.

Consequently, before we can decide the appropriateness of the board's actions, we must determine whether the referee ...


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