Appeal from Orders Dated October 17, 1984 of the Commonwealth Court of Pennsylvania at Nos. 3028 C.D. 1983 and 2750 C.D. 1983
John E. Domalakes, Frackville, for appellant.
Thomas L. Kennedy, Hazleton, for Evelyn Croll.
Bartel E. Ecker, Hazleton, for Willard Kay, Andrew Resuta & Michael Pesta.
Nix, C.j., and Larsen, Flaherty, McDermott, Hutchinson, Zappala and Papadakos, JJ. Zappala, J., joins the majority opinion and files a concurring opinion in which Nix, C.j., and McDermott, J., join. Larsen, J., files a dissenting opinion in which Papadakos, J., joins.
This is an appeal by a single employer, Dorr-Oliver, Inc., from two orders of Commonwealth Court reversing the Workmen's Compensation Appeal Board ("Board"). The Board affirmed a referee's denial of compensation benefits to all four individual appellees. In one order, Commonwealth Court reinstated benefits awarded appellee Croll by an earlier referee. In the other, Commonwealth Court remanded the cases of Kay, Resuta and Pesta to the Board
for further appellate review of an earlier referee's denial. All these cases had been consolidated previously by the Board and remanded to a third referee with directions to appoint an impartial expert to testify on the issue of whether appellees' single place of employment had a silica hazard.*fn1 All four cases involve the same workplace and the same factual issue with respect to the presence there of a silica hazard.
Despite the inconsistent results reached by the first two referees, Commonwealth Court first held the Board acted beyond its appellate power in initially remanding the cases for impartial testimony on the hazard issue and reinstated the benefits the first referee awarded Croll. In contradiction of the reason for its holding, however, it then remanded the cases in which the referee had denied Kay, Resuta and Pesta benefits for further consideration by the Board in its appellate role. Because we believe the Board has the power to attempt to reconcile the inconsistent results on the record in these cases by directing impartial testimony and assigning all of the cases to a single referee, we reverse Commonwealth Court. With respect to Kay, Resuta and Pesta, we note that a denial of the Board's remand power on these facts requires a reinstatement of the decision against the parties with the burden of proof, denying them benefits entered by the referee who first heard their case. A denial of Board power to remand would leave us with an award of benefits to Croll and an inconsistent denial to Kay, Resuta and Pesta, which can sometimes result from the differing ways individual factfinders view evidence, see Universal Cyclops, Inc. v. Krawczynski, 9 Pa. Commonwealth Ct. 176, 305 A.2d 757 (1973), but one which it seems to us the Board wisely sought to avoid on this record involving four employees in the same workplace
who relied on the same evidence, only to get ...