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.
[ 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 ...