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decided: August 4, 1989.




David E. Heisler, Lenahan & Dempsey, P.C., Scranton, for petitioner.

J. Scott Brady, O'Malley, Harris & Schneider, P.C., Wilkes-Barre, for respondent, Moosic Borough.

James J. Powell, III, Powell & Powell, Wilkes-Barre, for respondent, Robert Decker.

Crumlish, Jr., President Judge, and Craig, Doyle, Barry, Colins, Palladino and McGinley, JJ.

Author: Palladino

[ 128 Pa. Commw. Page 64]

Cleland Simpson Company (Employer) petitions for review of an order of the Workmen's Compensation Appeal Board (Board) affirming the decision of the referee to grant benefits to the Executrix of the Estate of Robert Decker (Claimant).*fn1

[ 128 Pa. Commw. Page 65]

A recitation of the facts is necessary to understand the claims of the parties and the present posture of this lengthy litigation. On September 19, 1978, Claimant filed two claim petitions with the Board which were consolidated. His first claim was against the Borough of Moosic for a work-related heart attack suffered September 22, 1976 and the second claim was against Employer for a work-related heart attack suffered on August 20, 1977.*fn2 The referee found that the heart attacks were two distinct injuries and awarded benefits to be paid by the Borough for the first injury from September 22, 1976 until January 11, 1977, the date Claimant returned to work for Employer. No further litigation followed the first award. The referee also awarded benefits for the second injury to be paid by the Employer for the period of August 20, 1977 until the date of Claimant's death on May 14, 1981. On appeal the Board affirmed the referee's second award and the Employer appealed to the Commonwealth Court.

By order of this court on November 12, 1985, the referee's order was vacated and the case was remanded to the Board for a factual determination of whether the Employer had knowledge or was given notice within 120 days of the work-related injury to Claimant. The order also required a specific finding with respect to whether Claimant was disabled by the second heart attack.*fn3

On remand, the referee opened the record and took additional testimony from Sharon Rutkowski, daughter of the Claimant. The referee concluded that notice of the work-related injury had been provided to Employer as required by Section 311 of The Pennsylvania Workmen's Compensation Act*fn4 and again awarded benefits. The Board affirmed the decision and the Employer has again appealed to this court.

[ 128 Pa. Commw. Page 66]

The Employer argues to this court that (1) the referee on remand improperly opened the record and (2) that the referee erred when he admitted hearsay evidence into the record and relied upon it in making his finding of whether proper notice of the work-related injury had been provided by the Claimant. Finally, the Employer asserts that the Claimant did not produce sufficient evidence to establish his disability from August 20, 1977 until May 14, 1981. Because the posture of this claim is controlled by the third issue, we begin our discussion with it.

On appeal to the Board, the Employer contended that no specific finding of disability had been made. In our order of November 12, 1985, in which we remanded to the Board, we asked for "a specific finding with respect to whether Robert Decker was disabled." Since we are constrained by our order that requires this finding to be made, we must, with reluctance, remand once again. Our reading of the referee's order of January 13, 1987, which was affirmed by the Board in an order dated May 13, 1988 reveals, much to our displeasure, that this order is almost verbatim with the June 10, 1983 referee's decision which we held lacked a necessary finding as to whether Claimant was disabled. Neither the referee nor the Board made the specific finding ordered by the remand. Consequently, litigation that has extended from September 19, 1978 until today regrettably will continue.

While we must remand for a specific finding of whether Claimant was disabled, in the interest of judicial economy, we shall address and dispose of other issues raised on this appeal.

Employer argues that it was improper for the referee to open the record and take additional testimony on the notice issue. Counsel for Employer in his brief states that the court, in its remand order, did not specifically order that the record should be reopened, nor did the Board direct the referee to take additional testimony. At the remand hearing the referee heard only the testimony of one witness, the daughter of the deceased Claimant.

[ 128 Pa. Commw. Page 67]

The narrow issue, presented by the facts of this case, appears to be one of first impression in this court; namely, may a referee receive testimony to make a necessary finding on remand, when the Commonwealth Court order and the Board order do not specifically state that additional testimony shall be heard? Our analysis of this question is conducted in accordance with the recent opinions of our supreme court in Joseph L. Joseph, Jr. v. Workmen's Compensation Appeal Board (The Delphi Company), 522 Pa. 154, 560 A.2d 755 (1989) and Cudo v. Hallstead Foundry, Inc., 517 Pa. 553, 539 A.2d 792 (1988).

In Joseph, the referee prematurely closed the record before receiving a memorandum of law of one of the parties. On appeal, the Board remanded to allow receipt of this document stating "We therefore Remand this case for further proceedings before the Referee." Joseph, 522 Pa. at 157, 560 A.2d at 756. In reviewing the referee's decision to allow further testimony, in addition to receiving the memorandum of law into the record, the supreme court concluded that the language of the Board's order of remand, "for further proceedings" encompassed the taking of additional testimony. Furthermore, the court made clear that to have the Board exercise review without allowing the referee to make a complete record could lead to Board affirmance of decisions that "due to the lack of full consideration by the referee, and the incompleteness of the record presented for review, erroneously appear sustainable." Joseph, 522 Pa. at 159, 560 A.2d at 757. The court's holding sets forth the proposition that even though specific language is not included in the Board order to remand, additional testimony may be properly taken in the interests of developing a full record.

In Cudo, 517 Pa. 553, 539 A.2d 792 (1988), the Board granted a rehearing to allow decedent's wife to present after discovered evidence that would have been available at the time of the first hearing through the exercise of due diligence. The rehearing resulted in the ...

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