Appeals from the Order of the Workmen's Compensation Appeal Board in the case of John R. Bickel, Jr. v. Williamsport Sanitary Authority, No. A-90318.
Clifford A. Rieders, for petitioner.
Hugh F. Mundy, Dougherty, Mundy & Leventhal, for respondent, Williamsport Sanitary Authority.
Paul J. Dufallo, with him, Frederick H. Hobbs, for respondent, State Workmen's Insurance Fund.
Judges MacPhail, Doyle, and Senior Judge Narick, sitting as a panel of three. Opinion by Judge MacPhail.
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John R. Bickel, Jr. (Petitioner) petitions for our review of the order of the Workmen's Compensation Appeal Board (Board) filed May 16, 1986 denying Petitioner's request for a remand pursuant to Section 419 of The Pennsylvania Workmen's Compensation Act (Act), Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 852, and the Board's order filed February 11, 1987 denying Petitioner's request for a rehearing pursuant to Section 426 of the Act, 77 P.S. § 871. We affirm the Board's order of May 16, 1986 and reverse the Board's order of February 11, 1987.
Petitioner contends that he was injured on August 22, 1983 while working at the Williamsport Sanitary Authority as part of the Community Work Experience Project.*fn1 As a result of this injury, Petitioner went to
[ 114 Pa. Commw. Page 335]
Divine Providence Hospital where he was examined and tested by various doctors, including an orthopedic specialist, Dr. Fred R. Amsler, Jr.
Three hearings were held subsequent to Petitioner's filing of a Claim Petition. Petitioner's counsel was present only at the December 20, 1983 and April 12, 1984 hearings. At the December 20, 1983 hearing, Petitioner's counsel indicated that Petitioner was scheduled to undergo operative procedures the following February for a ruptured disc. The Referee indicated that he would delay the proceedings until after that surgery occurred and that, in the meanwhile, counsel agreed to exchange medical reports and records. At that hearing, Petitioner's counsel also indicated that medical evidence would be presented by Dr. Amsler and a Dr. Stevens. Petitioner's counsel again specifically stated at the April 12, 1984 hearing that he intended to present the testimony of Dr. Amsler and assured that this would be done in order to back up medical records which were admitted on that condition. Notes of Testimony at 9, Reproduced Record at 16a. At the September 27, 1984 hearing, when Petitioner appeared alone, the referee indicated that he would be holding the record open for the receipt of medical evidence.
By letter dated December 20, 1984, however, Petitioner's counsel indicated to the referee that the record could be closed. As a result, no medical evidence on behalf of Petitioner was ever received as part of the record. Consequently, the referee issued a decision on June 17, 1985 concluding that, "[b]y presenting no medical evidence the claimant did not meet his burden of proof." Referee's Decision at 3. The referee also found that, "[t]his is not ...