YERGER v. Rockwell International

365 A.2d 899, 27 Pa. Commw. 73, 1976 Pa. Commw. LEXIS 770

• Court: Commonwealth Court of Pennsylvania
• Decided: November 15, 1976
• Docket: Appeal, 1886 C.D. 1975
• Status: Published

Opinion

Opinion by

Judge Wilkinson,

Appellant appeals an order of the Workmen’s Compensation Appeal Board (Board) vacating a referee’s disallowance of claimant’s petition for benefits and remanding “to give the claimant one more opportunity to clarify his evidence; ...” We reverse.

Claimant’s petition alleged that on June 21, 1973 he had suffered permanent loss of use of the little finger on his right hand through an injury in the course of his employment by .appellant.. After claimant had testified at a hearing on March 26, 1974, the matter was continued to allow Mm to present medical testimony. The second hearing was held on November 15, 1974. The physician who treated claimant immediately after the accident and at least once thereafter until November 16, 1973 testified that the total functional loss of use of the finger was 5 per cent and that claimant had suffered neither total nor one,-half permanent loss of use “for all practical intents and purposes.” This testimony remained unchanged even after the physician was asked on cross-examination by claimant’s counsel to look at the finger again. A physician who examined the claimant on June 3, 1974, testified that the claimant had suffered. seventy-five per cent permanent physical impairment of the finger. Claimant then amended his petition to allege loss of use of one-half of the finger. Upon disallowance of the petition claimant appealed to the Board, which “viewed the Claimant’s injured finger [and] informally discussed the matter with counsel” 1 before ordering remand.

We have already decided that the intent of The Pennsylvania Workmen’s Compensation Act 2 was “to accord finality to a referee’s determination and to establish the Board as merely a body of appellate review.” Forbes Pavilion Nursing Home, Inc. v. Workmen’s Compensation Appeal Board, 18 Pa. Commonwealth Ct. 352, 356, 336 A.2d 440, 443. (1975). Consistent therewith, the Board’s power -to remand'is limited to only those cases “where the referee’s findings are not supported, by competent evidence or where the referee has failed to make a finding on á crucial issue necessary for the proper application of the law.” Workmen’s Compensation Appeal Board v. E-C Apparatus Corp., 20 Pa. Commonwealth Ct. 128, 130, 339 A.2d 899, 900 (1975). Neither condition is met here.

Appellee claims that the remand order must be considered interlocutory and therefore unappealable. That is the general rule; however, where, as here, a remand order is clearly erroneous, it should be reversed. E.g. Riley Stoker Corp. v. Workmen’s Compensation Appeal Board, 9 Pa. Commonwealth Ct. 533, 308 A.2d 205 (1973).

Accordingly, we will enter the following

Obdeb

Now, November 15, 1976, the order of the Workmen’s Compensation Appeal Board, No. A-70503, dated December 5, 1975, is hereby reversed and the appeal of Rockwell International sustained.

1 These alleged actions of the Board do not appear in the record but only in claimant’s “Counter Statement of the Case.”

2 Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §1 et seq.