Appeal from the Order of the Workmen's Compensation Appeal Board in the case of Anthony Thomas v. State Farm Insurance Co., No. A-80674.
David W. Saba, Hourigan, Kluger & Spohrer Associates, for petitioner.
James J. McCabe, with him, Ellen Q. Suria, Duane, Morris & Heckscher, for respondent, State Farm Insurance Companies.
Judges Craig, MacPhail and Barbieri, sitting as a panel of three. Opinion by Judge Barbieri. Judge MacPhail dissents.
[ 78 Pa. Commw. Page 275]
Anthony Thomas (Claimant) appeals here from an order of the Workmen's Compensation Appeal Board (Board) affirming a referee's denial of his claim petition against State Farm Insurance Companies (State Farm). We affirm.
[ 78 Pa. Commw. Page 276]
Claimant filed a claim petition against State Farm alleging therein that he was totally disabled by stress he encountered during his service under a written contract as a licensed insurance agent.*fn1 State Farm subsequently contested this claim petition alleging (1) that Claimant was an independent contractor and not an employee of State Farm, and (2) that the stressful conditions Claimant operated under, if disabling, were self-inflicted, and not work related. Following the conduct of three hearings the referee awarded total disability benefits to Claimant. On appeal, the Board, after reviewing the record, decided to remand the case back to the referee for additional factual findings. In the interim, however, the referee who had awarded benefits had joined the law firm representing Claimant, so the case was reassigned to a new referee. At a pre-hearing conference both parties agreed that additional hearings were unnecessary and that the matter should be decided on the basis of the record created before the first referee. The new referee then issued a decision denying benefits with findings and conclusions contrary to those made by the first referee. The Board affirmed this decision on appeal, and the present appeal followed.
Before this Court, Claimant initially contends that the second referee should have only addressed himself to the specific factual issues mentioned by the Board in its remand order, and should not have made factual determinations contrary to those reached by the initial referee. We disagree.
Although this Court has held that a referee's decision after remand, reversing his prior findings, on the
[ 78 Pa. Commw. Page 277]
same record, may not stand and his prior decision must be reinstated where the remand was ordered despite the fact that the prior findings were properly supported by the evidence, No. 1 Contracting Corp. v. Workmen's Compensation Appeal Board (Van Horn), Pa. Commonwealth Ct. , 460 A.2d 375 (1983); but see Borovich v. Colt Industries, 492 Pa. 372, 424 A.2d 1237 (1981); McGraw-Edison/Power Systems Division v. Workmen's Compensation Appeal Board, 62 Pa. Commonwealth Ct. 302, 436 A.2d 706 (1981) and LoRubbio v. Workmen's Compensation Appeal Board, 49 Pa. Commonwealth Ct. 529, 411 A.2d 866 (1980), we believe that this general rule has no applicability to a situation where, as in the present case, the Department, pursuant to provisions of Section 415 of The Pennsylvania Workmen's Compensation Act,*fn2 assigns the case to a new referee because the initial referee, in view of ethical concerns, is either disqualified or recuses himself. Accordingly, we conclude that under the circumstances presented here, the referee was not bound by any limitations specified in the Board's remand order in his resolution of the factual issues of the case.
Claimant next alleges (1) that the Board erred as a matter of law by concluding that he was an independent contractor, (2) that the referee capriciously disregarded evidence indicating that his work responsibilities caused his emotional difficulties, and (3) that the referee capriciously disregarded evidence indicating that he timely ...