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BUDD TRAILER COMPANY v. WORKMEN'S COMPENSATION APPEAL BOARD (BEHNEY) (04/13/87)

decided: April 13, 1987.

BUDD TRAILER COMPANY, INC., PETITIONER
v.
WORKMEN'S COMPENSATION APPEAL BOARD (BEHNEY), RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board, in case of Jack M. Behney v. Budd Trailer Company, Inc., No. A-90044.

COUNSEL

Thomas C. Lowry, Swartz, Campbell & Detweiler, for petitioner.

Loren A. Schrum, with him, Keith D. Wagner, for respondents.

Judges MacPhail and Barry, and Senior Judge Barbieri, sitting as a panel of three. Opinion by Judge MacPhail.

Author: Macphail

[ 105 Pa. Commw. Page 259]

Budd Trailer Company, Inc. (Employer) petitions for our review of an order of the Workmen's Compensation Appeal Board (Board) which affirmed a referee's award of benefits to Jack M. Behney (Claimant).*fn1 We affirm.

The referee's findings reflect that Claimant, who worked for Employer as a welder, was injured while working on March 18, 1980, when a wooden shield fell onto him, causing him to strike his knees on a welding table. As a result of this accident, the referee found that Claimant suffered injuries to both of his knees. While not mentioned in the referee's fact findings, it is apparent from the record that Claimant also suffered injuries to his right knee from a fall at his home on or about April 7, 1980.*fn2 Claimant was unable to return to work after April 7 and, in fact, underwent surgery to his right knee on May 13, 1980. The referee noted that prior to the work accident on March 18, Claimant never had any

[ 105 Pa. Commw. Page 260]

    medical problems with his knees. The referee concluded that Claimant's work-related injuries resulted in his subsequent disability and awarded him compensation beginning on April 7, 1980.

As a preliminary matter, Claimant has challenged the timeliness of the instant petition for review. The procedural history of this case reveals that the initial referee's award, while affirmed by the Board on the merits, was remanded for a determination of Employer's entitlement to a credit for non-occupational accident and sickness benefits received by Claimant. The Board's decision was dated November 23, 1984. On remand, the referee ruled that Employer was entitled to such a credit. The Board affirmed the referee's determination in an opinion dated November 15, 1985, and the instant appeal followed.

Claimant argues that since the merits of the case were not at issue in the remand to the referee and were, in fact, finally resolved by the first Board order of November 23, 1984, a timely appeal regarding the merits should have followed that order. Our Court has held, however, that "a remand order of the Board is interlocutory and unappealable as a matter of right, without exception." Murhon v. Workmen's Compensation Appeal Board, 51 Pa. Commonwealth Ct. 214, 217, 414 A.2d 161, 163 (1980) (emphasis added). Our statement in Murhon was intentionally broad in scope and specifically disapproved the use of several previously developed exceptions to the general bar on appeals from Board remand orders. Given our unqualified holding in Murhon, we would be hesitant to now prevent Employer from pursuing the instant appeal, since it is certainly probable that its failure to file an earlier appeal from the Board's remand order was influenced by Murhon. While we express no opinion as to whether an appeal from the Board's first decision of November 24, 1984

[ 105 Pa. Commw. Page 261]

    would, indeed, have been quashed as interlocutory,*fn3 we will proceed to address the ...


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