Opinion
Argued October 6, 1980
November 25, 1980.
Workmen's compensation — Remand — Notice — Contested issue.
1. Where findings of fact by a referee in a workmen's compensation case are so inadequate that proper review of the decision is impossible, the Workmen's Compensation Appeal Board is warranted in remanding the case to take additional evidence so that proper findings can be made; remand is also proper in instances where there Las been no finding on a crucial issue. [635]
2. In a workmen's compensation case, where the referee makes no finding on a crucial, contested issue concerning whether the employee gave the employer sufficient notice of the injury, and where the fact findings on the issue of causal connection between work activity and injury suffered are inadequate, the Workmen's Compensation Appeal Board commits no error in ordering a remand. [637]
Argued October 6, 1980, before President Judge CRUMLISH and Judges BLATT and CRAIG, sitting as a panel of three.
Appeal, No. 53 C.D. 1980, from the Order of the Workmen's Compensation Appeal Board in case of Daniel Carlow v. Pepsi Cola Metro Bottling Company, No. A-76845.
Application to the Department of Labor and Industry for workmen's compensation benefits. Application dismissed. Applicant appealed to the Workmen's Compensation Appeal Board. Reversed and remanded. Benefits awarded by referee. Employer and insurance carrier appealed to the Workmen's Compensation Appeal Board. Appeal dismissed. Employer and insurance carrier appealed to the Commonwealth Court of Pennsylvania. Held: Affirmed.
Charles S. Katz, Jr., Swartz, Campbell Detweiler, for petitioners. Eric L. Lilian, for respondent, Daniel Carlow.
Pepsi Cola Metro Bottling Co. and its insurer appeal a Workmen's Compensation Appeal Board order affirming a referee's decision in favor of Daniel M. Carlow following a hearing on remand. We affirm.
By order dated June 22, 1978, the Board vacated a referee's decision denying Carlow's claim petition and remanded "to give claimant's physician the opportunity to testify and to make a disposition with findings of fact which are supported by evidence and also to make findings considering notice." Following a hearing on remand, the referee entered an award in favor of Carlow. The Board affirmed and Pepsi Cola brought the instant appeal.
Pepsi Cola also argued that the rate of compensation awarded was improperly calculated. However, the Board correctly ruled that the rate of compensation was in accordance with the statutory authorized rate at the time of the accident.
Pepsi Cola, at the remand hearing, objected to the additional proceedings, arguing that the Board's remand order was erroneous because the referee's original record contained substantial credible evidence. We disagree.
In Commercial Laundry, Inc. v. Workmen's Compensation Appeal Board, 17 Pa. Commw. 297, 331 A.2d 231 (1975), this Court held that, where findings of fact of a referee in a workmen's compensation case are so inadequate that proper review of the decision is impossible, the Board is warranted in remanding the case to take additional evidence so that proper findings can be made. This Court also has said that remand is proper in instances wherein there has been no finding on a crucial issue. See Forbes Pavilion Nursing Home, Inc. v. Workmen's Compensation Appeal Board, 18 Pa. Commw. 352, 336 A.2d 440 (1975).
In carefully reviewing the record as it existed at the time the referee made his initial decision denying the claim petition, we must agree with the Board's decision to remand.
The crucial fact finding on the causal connection between Carlow's work activity and the injury he allegedly sustained reads as follows:
2. On March 30, 1977, Claimant was unloading containers of Pepsi Cola from his truck at Archbishop Ryan High School, and after awhile [sic], his back began to hurt.
However, the testimony reveals that Carlow said he "had to take them [soda tanks] off the truck and lift them on a platform, and I hurt my back." When reading the testimony and the referee's findings of fact together, we are faced with the same inadequacy of fact finding as seen in Commercial Laundry, Inc., supra. Moreover, the referee made no finding as to whether Carlow gave his employer sufficient notice of his injury. This issue was crucial, was contested, and hence required a specific finding of fact.
We draw a distinction between inconsistent and inadequate fact finding. Findings of fact which are inconsistent warrant reversal whereas inadequacy requires a remand.
At Carlow's second hearing, medical testimony established that offloading the soda tanks was the specific traumatic episode which caused his injury. The referee further concluded that notice was given to Pepsi Cola when Carlow reported the injury to his supervisor at the end of his shift and then sought medical treatment at a company designated facility the next day. On appeal, the Board accepted these facts as conclusive and affirmed the referee's second decision.
Carlow's action in this regard has been held to satisfy the legal requirements as to notice of accident. See Barbaryka v. Henderson Coal Co., 154 Pa. Super. 402, 36 A.2d 341 (1944).
In reviewing both proceedings before the referee, we can appreciate the Board's request for a more specific fact finding analysis. The referee's second findings were more narrowly drawn which enabled proper review of the decision. Under the circumstances, the Board committed no error in ordering the remand.
Affirmed.
ORDER
The order of the Workmen's Compensation Appeal Board, dated December 13, 1979, is hereby affirmed, and it is directed that judgment be entered in favor of Daniel Carlow, and against Pepsi Cola Metro Bottling Co., all payments to be made in accordance with the order of the Workmen's Compensation Referee, dated February 3, 1979.