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BECHTEL POWER CORP. AND ARGONAUT INSURANCE CO. v. COMMONWEALTH PENNSYLVANIA (12/31/81)

decided: December 31, 1981.

BECHTEL POWER CORP. AND ARGONAUT INSURANCE CO., PETITIONERS
v.
COMMONWEALTH OF PENNSYLVANIA, WORKMEN'S COMPENSATION APPEAL BOARD AND CHARLES MILLER, RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in the case of Charles Miller v. Bechtel Power Corp., No. A-77150.

COUNSEL

Charles S. Katz, Jr., Swartz, Campbell & Detweiler, for petitioners.

Arthur G. Girton, for respondent, Charles Miller.

Judges Williams, Jr., MacPhail and Palladino, sitting as a panel of three. Opinion by Judge Palladino.

Author: Palladino

[ 63 Pa. Commw. Page 583]

Petitioners (Claimant's employer and the employer's insurer) appeal an order of the Workmen's Compensation Appeal Board (Board) which affirmed a referee's decision granting total disability benefits to Respondent (Claimant) pursuant to Section 306(a) of The Pennsylvania Workmen's Compensation Act (Act), Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 511. We affirm the order of the Board.

Before the referee, Claimant contended that while working as a steam fitter, he had tried to move a heavy section of pipe and had felt a "pop" in his groin area. Later the same day, he observed distension in the inguinal region, and subsequently was diagnosed by his physician, Dr. Flandreau, as having sustained an inguinal hernia for which corrective surgery was performed. Claimant then filed a petition for compensation. Based upon the testimony of Claimant and Dr. Flandreau, the referee found that Claimant's inguinal hernia "was directly related to the injury" at work. Therefore, the referee awarded "continuing total disability" benefits to Claimant.

On appeal by Claimant's employer, the Board concluded (1) that the "factual findings of the Referee [were] inadequate to support an ongoing award of compensation for total disability" and (2) that a remand to the referee was required for further hearing "for clarification and determination of the extent of the Claimant's disabled condition, the cause thereof, and the availability of work suitable to his condition."

On remand, Claimant introduced into evidence before the referee the deposition of a second physician,

[ 63 Pa. Commw. Page 584]

Dr. Mattson, whose unequivocal testimony established the connection between the work-related incident and Claimant's hernia and Claimant's inability to continue heavy labor. Nevertheless, Claimant's employer offered no evidence concerning the availability of work suitable for Claimant. Thus, in his second decision the referee found (1) that Claimant's hernia resulted from his work activities; (2) that Claimant remained unable to perform the heavy-labor jobs in which he was engaged before being injured, and (3) that the employer failed to show the availability of suitable employment. The referee again awarded continuing total disability benefits to Claimant.

Appealing from the referee's second decision, Claimant's employer argued before the Board that the additional testimony of Dr. Mattson was not authorized by the Board's remand order and that the Board should consequently remand the case to the referee, instructing the referee to disregard the testimony of Dr. Mattson and to clarify his initial factual findings as requested in the Board's original remand order. The employer contended that such a remand would result in the referee's being unable to find a causal link between Claimant's work injury and his hernia. However, the Board dismissed the employer's appeal, stating that the Board's remand order was sufficiently broad to authorize the additional testimony of Dr. Mattson and that Dr. Mattson's testimony provided, as the referee concluded, unequivocal medical evidence of the connection between the work injury and Claimant's disability.

Before this Court Petitioners advance several alternative theories: (a) Under the circumstances of this case the Board did not have the power to remand to the referee; (b) If the Board had the power to remand to the referee, then the Board's order did not permit the introduction of additional medical testimony,

[ 63 Pa. Commw. Page 585]

    and (c) The referee's findings after the remand were unsupported by substantial competent evidence. Petitioners' ...


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