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decided: May 20, 1988.


Appeal from the Order of the Workmen's Compensation Appeal Board, in the case of Joseph R. Barna, Sr. v. Jones & Laughlin Steel Corporation, No. A-83872.


Richard G. Spagnolli, with him, John W. McTiernan, McArdle, Caroselli, Spagnolli & Beachler, for petitioner.

Roy F. Walters, Jr., with him, Michael D. Sherman, Fried, Kane, Walters & Zuschlag, for respondent, Jones and Laughlin Steel Corporation.

Judges Craig and Palladino, and Senior Judge Barbieri, sitting as a panel of three. Opinion by Judge Palladino.

Author: Palladino

[ 116 Pa. Commw. Page 281]

The Pennsylvania Supreme Court in Barna v. Workmen's Compensation Appeal Board (Jones & Laughlin Steel) (Barna II), 513 Pa. 518, 522 A.2d 22 (1987), reversed this court's decision in Barna v. Workmen's Compensation Appeal Board (Jones & Laughlin Steel Corporation) (Barna I), 88 Pa. Commonwealth Ct. 83, 488 A.2d 651 (1985), and remanded the case to us for review of the issues not previously addressed. We vacate and remand.

The circumstances of this case were detailed in Barna I and Barna II. Therefore only a brief recitation of facts, in addition to the history of the case, will be given. Joseph R. Barna, Sr. (Claimant) injured his back while working for Jones & Laughlin Steel Corporation (Employer) on either July 18 or 20, 1977. Claimant reported the injury to Employer on July 22, 1977. In August, 1977, Claimant, complaining of acute pain in his back, was admitted to the hospital and spent approximately 18 days there. Claimant's discharge summary listed eleven diagnoses. Critical in the ultimate resolution of this case are the first two listed: 1) lumbosacral strain with radiculitis and 2) latent lues [syphilis] with probable neurolues [neurosyphilis].*fn1

[ 116 Pa. Commw. Page 282]

Employer, on October 10, 1977, executed a notice of compensation payable which indicated that Claimant had sustained acute lumbosacral strain as a result of a work injury and was entitled to compensation for a total

[ 116 Pa. Commw. Page 283]

    disability beginning July 23, 1977. On December 10, 1978, Employer filed a petition for review pursuant to section 771 of The Pennsylvania Workmen's Compensation Act (Act),*fn2 alleging a change in the nature and character of Claimant's disability. The evidence which Employer presented was not directed to showing that Claimant's disability had changed but to proving that the disabling back injury had never been related to the work injury suffered in July, 1977.

In support of its petition, Employer presented the deposition testimony of Dr. Anas A. El Attar, Employer's plant physician. Dr. El Attar testified that he informed Employer on October 13, 1977, after reviewing Claimant's hospital records, that he felt Claimant's disability was not related to his job. El Attar deposition at 13-14. Dr. El Attar opined that Claimant's disability was the result of tertiary (late) syphilis*fn3 and not the

[ 116 Pa. Commw. Page 284]

    work injury. Id. at 17, 19. Dr. El Attar's opinion was based, in large part, on Claimant's hospital records.*fn4 Id. at 23-38. Dr. El Attar equated the discharge diagnosis of latent lues with late syphilis, id. at 37, and probable neurosyphilis with Claimant not having 100% of his nervous system involved. Id. at 38.

Claimant presented the deposition testimony of Dr. Schor, who opined that Claimant's disability was caused by a myofacial (muscular) injury to his back as a result of the July, 1977 work injury. Schor deposition at 9. Dr. Schor defined latent lues as "third stage syphilis which is not active at the time." Id. at 8.

The referee, in an opinion issued May 19, 1982, concluded that, as of December 4, 1978, Claimant's disability was not work related and terminated his workmen's compensation as of that date. Referee's conclusions of law 8, 9. The Workmen's Compensation Appeal Board (Board), on October 20, 1983, affirmed. Claimant appealed to this court. In an opinion issued March 4, 1985, this court reversed on the basis of the Pennsylvania Supreme Court decision in Beissel v. Workmen's Compensation Appeal Board (John Wanamaker, Inc.), 502 Pa. 178, 465 A.2d 969 (1983).

[ 116 Pa. Commw. Page 285]

In Beissel, the employer filed a termination petition,*fn5 two years after filing a notice of compensation payable, alleging that the claimant's disability was unrelated to her admitted work injury. The referee granted the termination petition. The Board and this court affirmed. The Supreme Court reversed, stating:

[Employer] may not now, under the guise of a termination petition, come into court and . . . contradict precisely that which it admitted in its notice of compensation payable, namely that [claimant's] disability at the time the notice of compensation payable, . . . was related to her 1975 fall at work.

Beissel, 502 Pa. at 183, 465 A.2d at 971-72.

This court concluded that the situation in Barna I was identical to that in Beissel: Employer was alleging, more than one year after executing notice of compensation payable, that Claimant's disability had never been related to his July 1977 work injury. The Supreme Court, however, found the situation distinguishable from Beissel, concluding in Barna II:

The instant case is distinguishable from Beissel because the record does not show that J & L actually investigated claimant's condition prior to the notice of compensation payable. . . . Commonwealth Court also based its decision upon a perceived potential for abuse if employers are

[ 116 Pa. Commw. Page 286]

    permitted to repeatedly challenge the cause of a claimant's disability. This observation is certainly consistent with the spirit of our decision in Beissel. . . . Repeated litigation of the cause of a claimant's injury is wasteful and, thus, to be avoided. However, there is no hint on this record that J & L is guilty of such abuse.

Id. at 522, 522 A.2d at 24. The case was remanded to this court to review the issues raised by Claimant which were not previously considered.

Claimant raised two issues, in addition to that considered in Barna I and Barna II, in his original appeal to this court:*fn6 (1) whether the medical evidence of Dr. El Attar may be considered as substantial evidence to support the referee's finding that Claimant's disability was not related to his work injury; and (2) whether there is any legal and/or factual basis for the date selected by the referee for the termination of Claimant's benefits. Unfortunately, it is impossible for this court to address these issues on the record before us for the reason which follows.

The referee's finding of fact number 29 states:

We have carefully reviewed the record, including the hospital records and the testimony of the physicians, and conclude that the claimant's disability was not and is not work related, and, in view of the above, we make said findings to apply to that period beginning December 4, 1978.

Claimant contends that the only evidence which could support such a conclusion was the medical testimony of

[ 116 Pa. Commw. Page 287]

Dr. El Attar. Claimant further argues that Dr. El Attar's testimony does not provide substantial evidence for this conclusion. Claimant alleges Dr. El Attar's testimony is premised on a misinterpretation of Claimant's hospital records, making Dr. El Attar's medical opinion incompetent. Employer, in addition to defending the competency of Dr. El Attar's testimony, points out portions of the medical records and Dr. Schor's testimony which it argues provide substantial support for a finding that Claimant's disability was the result of neurosyphilis rather than the work injury.

A review of the referee's findings of fact reveals only a recitation of the evidence, possible inferences from this evidence, and the allegations of the parties.*fn7 There

[ 116 Pa. Commw. Page 288]

    are no specific factual findings to support his conclusion that Claimant's disability was not and is not work related. There are no findings with respect to the cause of Claimant's disability and whether he actually suffers

[ 116 Pa. Commw. Page 289]

    from neurosyphilis. There is no finding on whether Claimant even suffered a work related injury. There is no indication of who or what the referee believed. Without specific findings of fact on these matters we

[ 116 Pa. Commw. Page 290]

    cannot address Claimant's arguments and perform our appellate review. Universal Trucking, Inc. v. Workmen's Compensation Appeal Board (Hassell), 112 Pa. Commonwealth Ct. 428, 535 A.2d 722 (1988).

Accordingly, we vacate and remand.


And Now, May 20, 1988, the order of the Workmen's Compensation Appeal Board is vacated and the case remanded for further proceedings consistent with this opinion.

Jurisdiction relinquished.


Affirmed. Order of Board vacated. Case remanded.

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