Appeal from the Order of the Court dated August 30, 1985, in the Commonwealth Court of Pennsylvania at Docket No. 2593 C.D. 1985
Robert Dean, John R. Dean, Montrose, for appellant.
David E. Heisler, Scranton, for appellee.
Nix, C.j., and Larsen,*fn* Flaherty, McDermott, Zappala and Papadakos, JJ. Nix, C.j., joins the majority opinion and files a concurring opinion. McDermott and Papadakos, JJ., join the majority opinion. Flaherty, J., files a dissenting opinion joined by Zappala, J. Stout, J., did not participate in the consideration or decision of this case.
The issue in this case is whether after discovered evidence, as that term is used by the courts when considering a motion for a new trial, is the only basis upon which the Workmen's Compensation Appeal Board (Board) may grant a rehearing.
Lewis Cudo (decedent) was an employee of Hallstead Foundry, Inc. (employer) for 22 years. For the five years preceding his death, decedent worked as a grinder, which position involved standing in a booth, grinding and turning metal castings weighing between 25 and 150 pounds. On May 17, 1979, decedent performed his normal tasks at work for seven hours. As he awaited the lunch whistle, he fell over and, shortly thereafter, was pronounced dead on arrival at Binghamton General Hospital. The autopsy listed the causes of death as advanced coronary atherosclerotic heart disease and acute congestive heart failure. Decedent had had a pre-existing heart condition which had been alleviated by surgery in 1966.
Decedent's wife, Barbara Cudo, appellant herein, filed a fatal claim petition under the Workmen's Compensation Act (Act). 77 P.S. §§ 1-1603. Dr. James J. Grace, the Susquehanna County coroner's physician, provided the only medical testimony during the hearing before Referee Fraser Donlan. Dr. Grace, who had not prepared the autopsy report and who could not recall ever having treated decedent,
testified that the stress and tensions of decedent's regular work were directly related to decedent's heart attack and resulting death. On the basis of this testimony, the referee awarded death benefits of $117.30 per week to appellant and directed that the employer's insurance carrier pay $70.00 for medical expenses and $1500.00 for funeral expenses.
The employer appealed to the Board, and, during the hearing before the Board, appellant requested that the matter be remanded for further hearings on the issue of medical causation. This request was refused, and the Board reversed the referee, finding that the medical testimony of Dr. Grace was equivocal on the issue of whether decedent had suffered a work-related injury resulting in death. An appeal was erroneously taken to the Court of Common Pleas of Susquehanna County. While that appeal was pending and within 18 months of the Board's decision, appellant filed a petition for rehearing pursuant to section 426 of the Act.*fn1 Appellant alleged in her petition for rehearing that after discovered evidence had become available, which evidence would show unequivocally that decedent's death was work-related. The after discovered evidence referred to in the petition for rehearing was the testimony of Dr. William H. Sewell, who had performed heart surgery on decedent in 1966, but who had not been consulted by appellant until after the hearing before the referee.
The Board acknowledged that Dr. Sewell's testimony would have been available at the time of the hearing through the exercise of due diligence. The Board granted appellant's petition for rehearing, however, stating that it
was "in the interests of justice, particularly considering the difficult burden on a claimant in a death case such as . . . the one here involved" to grant the petition. The employer's appeal to Commonwealth Court of the Board's grant of a rehearing was quashed as interlocutory.
The rehearing was conducted before Referee Joseph Olexy, who admitted into evidence, in addition to the testimony of Dr. Sewell, the testimony of a co-worker of decedent and the deposition testimony of the employer's medical expert. The referee awarded benefits to appellant and the Board affirmed. On appeal, Commonwealth Court, in a memorandum opinion, determined that the Board had abused its discretion in granting the petition for rehearing and ruled that the Board's original order denying benefits must stand. Quoting Young v. Workmen's Compensation Appeal Board (Britt & Pirie, Inc.), 72 Pa. Commw. 471, 475, 456 A.2d 1150, 1152 (1983), Commonwealth Court stated that the Board may only grant a rehearing where there is "after discovered, non-cumulative evidence which could not have been, by the exercise of ordinary diligence, produced at the original hearing." We granted appellant's petition for allowance of appeal, and we now reverse.
The Board has broad powers to grant a rehearing.*fn2 The standard against which the Board's discretion must be measured was early enunciated by Superior Court, which stated in a case similar to the case at bar:
One of the purposes of the workmen's compensation laws is to give a claimant full opportunity to present whatever competent evidence he desires to reach the merits of the case. In harmony with this liberal tendency, the courts have held that the board has broad powers to grant a rehearing when justice requires: Kocher v. Kocher et al., 300 Pa. 206, 150 A. 468 ; Manley v. Lycoming Page 558} Motors Corp., 83 Pa. Superior Ct. 173; Fedak v. Dzialdowski, 101 Pa. Superior Ct. 346. In Vorbnoff v. Mesta Machine Co., 286 Pa. 199, 133 A. 256 , it is held that the court's duty does not extend to sending the record back for an opportunity to furnish cumulative evidence to strengthen a weak case, as the ...