Appeal from the Order of the Workmen's Compensation Appeal Board, in case of Jose Becerra v. Leaseway Systems, Inc., No. P.E. 4305.
David L. Pennington, with him, Roger B. Wood, Harvey, Pennington, Herting and Renneisen, Ltd., for petitioners.
Martin J. Fallon, Jr., Swartz, Campbell & Detweiler, for respondent, Jose Becerra.
Judges MacPhail and Palladino, and Senior Judge Barbieri, sitting as a panel of three. Opinion by Senior Judge Barbieri.
[ 101 Pa. Commw. Page 119]
Before this Court for the second time is this workmen's compensation case commenced by Claim Petition filed January 10, 1974, on behalf of Joseph Becerra, Claimant, alleging a work-related injury suffered on November 1, 1972, in the course of Claimant's employment by Leaseway Systems, Inc., Employer. This appeal to us, like the previous one, brings before us a procedural question which has operated to postpone, rather than bring about, a decision on the merits of Claimant's case. Without detailing past ramifications and litigation steps, we note that our prior remand, Leaseway Systems, Inc. v. Workmen's Compensation Appeal Board (Becerra), 53 Pa. Commonwealth Ct. 520, 418 A.2d 796 (1980), directed that proceedings be held on the original claim petition since the agreement for compensation was illegal under Section 407 of The Pennsylvania Workmen's Compensation Act (Act).*fn1 Disability was initially conceded up to a certain date, January 1, 1974, as of which date Claimant's "continuing disability" was "left open."*fn2 Before us now is the issue of whether or not the Board has properly denied the employer's and insurer's petition for a fourth medical examination
[ 101 Pa. Commw. Page 120]
by a physician examining for them. The instant petition is filed under Section 314 of the Act, 77 P.S. § 651.
Petitioner's contention here is that under the authority of our decision in Bi-Lo Shop-N-Bag v. Workmen's Compensation Appeal Board (Hesson), 60 Pa. Commonwealth Ct. 133, 430 A.2d 1212 (1981), it was error for the Board to render its decision without first holding a hearing or referring the matter to a referee for a hearing, without making or having made a record, without making findings of fact or conclusions of law and without rendering an opinion, on the basis, it is argued, that such an extensive panoply of litigation must be required in each case to provide a record capable of appellate review. Claimant contends, however, that the refusal of the Board in this case is a matter for the sound discretion of the Board, not reviewable by us, and that there can be no abuse of discretion because the medical witness designated to make a fourth examination has already made three prior examinations on dates closer to the time of alleged injury; that on each of the three prior times this medical witness has found Claimant capable of returning to his former employment; and, if that decision was made on three separate occasions when disability would be more likely to exist than at this point, several years later, it is a futile and unnecessary imposition to require a further examination of the Claimant. It is urged that Bi-Lo is readily distinguishable. Unfortunately, we must decline to address the principal issues, since in our judgment the instant appeal from the Board's denial of the request for a fourth examination is an interlocutory order and the appeal therefrom to us must be quashed. Murhon v. Workmen's Compensation Appeal Board (Berylco), 51 Pa. Commonwealth Ct. 214, 414 A.2d 161 (1980). Furthermore, on this very issue, whether an appeal will lie to
[ 101 Pa. Commw. Page 121]
us from denial of a further examination under Section 314, we find no distinguishing characteristics and, therefore, find controlling, the case of H.K. Porter Co., Inc. v. Workmen's Compensation Appeal Board (O'Connor), 100 Pa. Commonwealth Ct. 393, 514 A.2d 996 (1986).*fn3
Now, September 29, 1986, the appeal of Leaseway Systems, Inc., from a remand order of the Workmen's Compensation Appeal Board, No. P.E. 4305, dated ...