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FMC CORPORATION v. WORKMEN'S COMPENSATION APPEAL BOARD (WADATZ) (06/03/88)

decided: June 3, 1988.

FMC CORPORATION, PETITIONER
v.
WORKMEN'S COMPENSATION APPEAL BOARD (WADATZ), RESPONDENT



Appeal from the Order of the Workmen's Compensation Appeal Board, in the case of Albert Wadatz v. FMC Corporation, No. A-90681.

COUNSEL

Michael J. Wagner, Evey, Routch, Black, Dorezas, Magee & Andrews, for petitioner.

John W. Pollins, III, for respondent, Albert Wadatz.

Judges Doyle and Barry, and Senior Judge Kalish, sitting as a panel of three. President Judge Crumlish, Jr., and Judges Craig, MacPhail, Colins and Palladino, sitting as the Court En Banc. Opinion by Judge MacPhail. Dissenting Opinion by Judge Barry. Judge Doyle joins in this dissent.

Author: Macphail

[ 116 Pa. Commw. Page 528]

Petitioner, FMC Corporation, seeks review of an order of the Workmen's Compensation Appeal Board (Board) which reversed and remanded the referee's order and reinstituted compensation benefits for total disability for injuries separate and distinct from the specific loss of claimant's, Albert Wadatz, left foot.

On November 5, 1980, claimant, who was employed by petitioner, sustained a work-related injury in which his left foot was crushed and subsequently amputated. The notice of compensation payable described the injury as a crushed left foot. Subsequently, the petitioner filed a petition for modification alleging that the claimant's injury was limited to a specific loss of his left foot without any injury or disability separate and distinct therefrom, and that payments should be terminated as of February 14, 1986. There was no factual dispute over the specific loss of the left foot. All parties agreed that claimant was entitled to compensation for the amputation for a total of 275 weeks pursuant to Section 306(c), (d) of the Pennsylvania Workmen's Compensation Act (Act), Act of June 2, 1915, P.L. 736, as amended, 77 P.S. ยง 513.

The Board's order reversed the referee's decision that claimant's disability was limited to specific loss benefits and ordered compensation benefits for total disability reinstated. The Board, in addition, remanded

[ 116 Pa. Commw. Page 529]

    the case for a determination of counsel fees to be awarded, noting that there was conflicting evidence in the record concerning the calculation of those fees. In its order, the Board authorized the referee, at his discretion, to reopen the record to resolve the matter if the referee should decide that that was necessary.

We now must decide whether the instant appeal should be quashed under the "no exception" rule on remand orders which we first enunciated in Murhon v. Workmen's Compensation Appeal Board, 51 Pa. Commonwealth Ct. 214, 414 A.2d 161 (1980).

In Murhon, this Court held that "a remand order of the Board [Workmen's Compensation Appeal Board] is interlocutory and unappealable as a matter of right, without exception." 51 Pa. Commonwealth Ct. at 217, 414 A.2d at 163 (emphasis added, footnote omitted). Judge (later Justice) Wilkinson stated for the Court that the principal reason for our decision was the fact that over the years prior to Murhon, so many exceptions had developed to the "well established doctrine" that an interlocutory order of the Board was not appealable, that the doctrine had lost its vitality. We recently took the opportunity to affirm Murhon in Budd Trailer Co. v. Workmen's Compensation Appeal Board (Behney), 105 Pa. Commonwealth Ct. 258, 524 A.2d 525 (1987), when we held that an employer's failure to appeal from a Board remand order did not bar the employer from appealing the Board's final order entered after the referee acted on remand.

Notwithstanding our strong language in Murhon, we have, since that decision, again begun to carve out exceptions to the firm rule we had therein enunciated. See, e.g., Mangine v. Workmen's Compensation Appeal Board (Consolidated Coal Co.), 87 Pa. Commonwealth Ct. 543, 487 A.2d 1040 (1985), H. B. Sproul ...


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