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DAVID TERRELL v. WORKMEN'S COMPENSATION APPEAL BOARD (J. V. MCNICHOLAS) (01/08/88)

decided: January 8, 1988.

DAVID TERRELL, PETITIONER
v.
WORKMEN'S COMPENSATION APPEAL BOARD (J. V. MCNICHOLAS), RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in the case of David Terrell v. J. V. McNicholas, No. A-91171.

COUNSEL

Sanford A. Middleman, for petitioner.

Michael J. Seymour, for respondent, J. V. McNicholas.

Judges Barry and Colins, and Senior Judge Narick, sitting as a panel of three. Opinion by Judge Colins.

Author: Colins

[ 112 Pa. Commw. Page 421]

On January 9, 1976 David Terrell (claimant) suffered injuries to his ear, neck and back while attempting to thaw a brake line on a truck owned by J. V. McNicholas (employer). A spark from the flare that the claimant was using to heat the brake line entered his ear, puncturing his eardrum. Claimant reacted by jerking his head and neck back against the truck. Subsequently, claimant was examined by a physician at the Eye and Ear Hospital in Pittsburgh (Eye and Ear) and diagnosed as having a hole in his eardrum. Claimant consulted an Octologist on the referral of a physician at Eye and Ear. The claimant was further referred to a chiropractor for treatment of neck and back pain. He initially consulted Dr. Biddle, a chiropractor, but was eventually refused treatment due to his persistence in attempting to work. Thereafter, claimant consulted a second chiropractor, one Dr. Mann, from May 25, 1976 until December, 1976. Dr. Mann took claimant out of his work until on or about December 18, 1976. From the date of injury, the claimant attempted to work intermittently, citing neck and back pain as the cause of his absence.*fn1

[ 112 Pa. Commw. Page 422]

The claimant filed a Claim Petition on February 14, 1978 requesting Workmen's Compensation benefits for the period of May 25, 1976 until November 30, 1976. Referee John G. Fahey (Referee Fahey) awarded benefits to the claimant on May 18, 1979. However, on appeal, the Workmen's Compensation Appeal Board (Board) reversed and remanded the decision on January 10, 1980.*fn2

A rehearing was held, at which time the claimant testified and presented the deposition transcript of Dr. Albert T. Smith (Dr. Smith), claimant's medical expert, who examined the claimant in 1982. Benefits were once again granted to the claimant by Referee Fahey on March 30, 1984. On appeal, the employer alleged that the referee had received no evidence and made no finding of fact as to the issue of causation. The Board again remanded this claim on January 10, 1985 stating that "on remand the parties will be afforded an opportunity to present evidence and witnesses and shall be afforded the right to cross examination as to the causation issue." Due to the retirement of Referee Fahey, the claim petition was reassigned to Referee Thomas J. Ferris (Referee Ferris), who awarded the claimant medical payments, certain counsel fees and costs only. On appeal, the Board affirmed the decision of Referee Ferris. Claimant here appeals the Order of the Board.

Claimant raises two issues on appeal. First, he contends that the Board committed an error of law in its January 10, 1985 remand of Referee Fahey's decision, since the findings were supported by competent and substantial evidence in the form of testimony of the claimant and Dr. Smith. Secondly, claimant argues that

[ 112 Pa. Commw. Page 423]

    the decision of Referee Ferris was not supported by substantial evidence. We shall address these issues seriatim.

The Board may remand when findings of the referee are not supported by the evidence or where a necessary finding was not made. Fessler v. Workmen's Compensation Appeal Board (Nationwide Insurance Co.), 86 Pa. Commonwealth Ct. 198, 484 A.2d 422 (1984). A review of the record indicates that Referee Fahey, in his decision of March 30, 1984, made no finding of fact as to the legal nexus between the injury suffered and the alleged period of disability. Referee Fahey did make the following pertinent findings of fact:

8. Claimant testified that he was unable to work from January 26, 1976 to January 30, 1976; and February 9, 1976 to February 11, 1976; and February 23 to February 26; and March 4, 1976, March 8, 1976, March 9, 1976, March 22, 1976, March 31, 1976; and April 1, 1976 to April 19, 1976.

11. The referee finds as a fact that based on all the evidence received, both medical and lay, the claimant suffered an injury while in the course of his employment on Janaury [sic] 9, 1976, said injury being a perforated eardrum and neck strain and that claimant was disabled as a result of said injury pursuant to Finding No. 8.

A close examination of these findings indicates that the referee did not determine that a disability existed for the claim period in question, namely, May 25, 1976 to November 30, 1976. Ironically, Finding No. 8 addresses all time periods for ...


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