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decided: September 9, 1986.


Appeal from the Order of the Workmen's Compensation Appeal Board, in case of Stephen O'Connor v. H.K. Porter Co., Inc., S.S. No. 175-46-8106, P.E. NO. 2906.


Robert A. Detweiler, for petitioner.

Marc S. Jacobs, Of Counsel: Galfand, Berger, Senesky, Lurie & March, for respondent, Stephen O'Connor.

Judges MacPhail and Doyle, and Senior Judge Kalish, sitting as a panel of three. Opinion by Judge Doyle.

Author: Doyle

[ 100 Pa. Commw. Page 394]

H.K. Porter Co., Inc. (Employer) appeals from an order of the Workmen's Compensation Appeal Board (Board) which denied Employer's petition to the Board requesting that Stephen J. O'Connor (Claimant) be ordered to submit to a medical examination by a physician of Employer's choice pursuant to Section 314 of The Pennsylvania Workmen's Compensation Act (Act),*fn1 77 P.S. § 651. Claimant has responded to this appeal on the merits and has also filed a motion to quash the appeal as premature, contending that the Board's order is interlocutory.

[ 100 Pa. Commw. Page 395]

The parties agree that Claimant was disabled by a work-related back injury on September 10, 1979, and that the Employer instituted proceedings before a referee to resolve the sole issue which remained with respect to that injury, namely, whether it constituted a new injury or an aggravation of a prior work-related injury which occurred on May 10, 1977. Employer alleged that the 1979 injury was merely an aggravation of the 1977 injury, and that therefore, its 1977 insurance carrier was responsible for the claim. Employer was

[ 100 Pa. Commw. Page 396]

    self-insured at the time of the 1979 injury. A hearing on this issue was in progress at the time Employer filed the Section 314 petition.*fn2

We note initially that a factual dispute exists with respect to this petition. Claimant asserts that he has already been examined by a physician of Employer's choice, and that Employer has presented testimony of this physician before the referee. Employer has submitted to this Court, under cover of a post-argument letter, various documents purporting to prove that Employer did not hire or choose the physician in question.*fn3 This tactic is, to say the least, highly inappropriate before an appellate court, whose scope of review does not extend

[ 100 Pa. Commw. Page 397]

    to the resolution of factual disputes. See Section 704 of the Administrative Agency Law, 2 Pa. C.S. § 704. In connection with this submission, Employer is arguing that the Board should have assigned its petition to a referee for an evidentiary hearing. We are referred for this proposition to the case of Bi-Lo Shop-N-Bag v. Workmen's Compensation Appeal Board, 60 Pa. Commonwealth Ct. 133, 430 A.2d 1212 (1981). Bi-Lo does state that a Section 314 petition must be assigned to a referee for a hearing, and that an order denying such a petition must be accompanied by findings of fact and conclusions of law. If it were otherwise, this Court could not perform its function of appellate review. As we stated in Bi-Lo, "[s]ince . . . the Board's order is not accompanied by factual findings or legal conclusions, we are unable to determine if the compensation authorities have abused their discretion by not ordering . . . additional examinations." There is a crucial distinction, however, between Bi-Lo and the case at bar, in that the former concerned a petition which was filed as an independent proceeding. The Board's order, therefore, was final, and could not be reviewed by this Court without findings of fact and conclusions of law. The holding of Bi-Lo is quite clear that the issue to be resolved was the function of the Board and it would be the Board's discretion that would be reviewed on appeal under Section 314 of the Act. The holding in Bi-Lo would be totally inapplicable to an interlocutory order, which is not yet the proper subject for appellate review, even if it were accompanied by findings of fact and conclusions.

We agree with Claimant therefore, that the Board's order in the instant case is interlocutory. As a general rule, any remand order of the Board is interlocutory and, therefore, unappealable. Murhon v. Workmen's Compensation Appeal Board, 51 Pa. Commonwealth Ct. 214, 414 A.2d 161 (1980). In this case, the Board's

[ 100 Pa. Commw. Page 398]

    order did not state that the case was to be remanded to the referee. This was, apparently, because the petition was not an appeal from an order or ruling of the referee. Employer simply submitted a collateral issue to the Board in the middle of the main proceedings. This procedure has raised a peculiar problem regarding the application of Section 314.*fn4

A review of the case law reveals that there are basically two ways by which this Court might be presented with a Section 314 petition. In the first situation, there would be no proceedings currently before a referee or the Board, but the Employer might wish to contest liability or disability and believe that a medical examination of the Claimant is necessary for such purpose. Under these circumstances, we have held that the Board must assign the petition to a referee for a hearing and findings of fact, since we would be unable, as stated above, to exercise appellate review. Bi-Lo; School District of Philadelphia v. Workmen's Compensation Appeal Board, 17 Pa. Commonwealth Ct. 525, 333 A.2d 223 (1975).

Where, however, a petition is already pending before a referee, and a request for a Section 314 examination is filed as an integral part of that primary proceeding, the Board's order would be interlocutory. For

[ 100 Pa. Commw. Page 399]

    example, an employer might file a petition to terminate benefits which includes an allegation that claimant has refused to submit to a medical exam. See Caggiano v. Workmen's Compensation Appeal Board, 42 Pa. Commonwealth Ct. 524, 400 A.2d 1382 (1979). Another example would be where a petition for benefits is instituted by a claimant and the employer requests an examination for the purpose of contesting the existence and/or extent of disability. See Mrs. Smith Pie Co. v. Workmen's Compensation Appeal Board, 57 Pa. Commonwealth Ct. 274, 426 A.2d 209 (1981). Under these circumstances, it would appear that a referee may rule upon the request himself, and that a denial would then be subject to appeal before the Board and this Court as part of the appeal on the merits. See Bostic v. Dreher, 206 Pa. Superior Ct. 257, 213 A.2d 118 (1965).

Alternatively, an employer might request a continuance of the proceedings before the referee for the purpose of petitioning the Board to order a medical examination. See Mrs. Smith. We have never had occasion to rule on whether or not a Board's decision on such a petition would be interlocutory or subject to immediate appeal. Apparently, such decisions have been treated as appealable together with an appeal on the merits of the primary petition. See Mrs. Smith. We believe this is the more practical treatment, since the Section 314 petition would have the effect of interrupting the proceedings before the referee pending the outcome of the Board's decision. In addition, this Court would always carefully scrutinize the record before overturning a Board decision on a Section 314 petition since the standard of review is manifest abuse of discretion. H.B. Sproul Construction Co. v. Workmen's Compensation Appeal Board, 60 Pa. Commonwealth Ct. 413, 431 A.2d 1143 (1981). Consequently, there is little risk of compromising

[ 100 Pa. Commw. Page 400]

    the rights of any party by withholding review at that stage.

The problem remaining with respect to the petition currently before us is that it was treated by the Board as an independent proceeding. We do not have the benefit of the record in the case on the merits. We do not know, therefore, whether Employer made a request for the physical examination before the referee prior to petitioning the Board, or whether a continuance was requested pending the Board's decision on the 314 petition. We do know, however, that the matter was not continued pending an appeal to this Court.*fn5

If the questions of whether or not a medical examination was necessary, whether or not Claimant's refusal of same (if, in fact, such refusal occurred) was reasonable, and whether or not Claimant had already been examined by a physician of Employer's choice, had been kept part of the proceedings in which the examination was to be offered as proof, the existing factual dispute could undoubtedly have been resolved by reviewing the record of the parties' primary dispute. Given the present procedural stance of the case, however, we see no alternative but to quash Employer's appeal as interlocutory.


Now, September 9, 1986, the appeal of H. K. Porter in the above-captioned matter is hereby quashed as interlocutory.


Appeal quashed as interlocutory.

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