Macaluso v. Workmen's Compensation Appeal Board

BYER, Judge.

Charles Macaluso appeals from an order of the Workmen’s Compensation Appeal Board denying his petition for compensation benefits.

Mr. Macaluso was employed by the Philadelphia College of Osteopathic Medicine as a truck driver and maintenance man. On April 6,1981, he sustained a low back injury while lifting a 36-pound mail bag.

Mr. Macaluso filed a claim petition and, after a series of hearings, the referee found that he had sustained a work-related injury. However, the referee also found that Mr. Macaluso was fully recovered as of July 13, 1981 and granted compensation for that limited period. The referee made no findings regarding the payment of Mr. Macaluso’s medical bills.

Mr. Macaluso appealed. The board affirmed the decision of the referee awarding compensation from April 6, 1981 to July 13, 1981, but remanded the case to the referee for findings concerning the payment of medical bills.

On remand, the referee incorporated all of the findings of facts and conclusions of law in his earlier decision. However, the referee added the additional finding that Mr. Macaluso’s medical bills were unrelated to his work injury because the treatment took place after the date Mr. Macaluso had fully recovered. Mr. Macaluso again appealed.

The board held that because Mr. Macaluso did not appeal its initial decision affirming the referee’s decision that he had fully recovered as of July 13, 1981, Mr. Macaluso was precluded from raising this issue because of the doctrine of res judicata.

Mr. Macaluso argues to us:¹ (1) the referee erred in denying payment of his medical bills based upon the erroneous finding that he had fully recovered from his work-related injury on July 13, 1981; and (2) the referee’s finding of fact that he had fully recovered from his work-related injury on July 13, 1981 is not supported by substantial evidence.

The employer contends that the board correctly held that Mr. Macaluso is precluded from asserting that the referee erred in finding that he had fully recovered on July 13, 1981, because Mr. Macaluso did not appeal the board’s initial decision affirming the referee’s finding on this issue. We do not agree.

The board’s initial order remanded the case to the referee. Remand orders are interlocutory and not appeal-able except by permission in accordance with 42 Pa.C.S. § 702(b) and Pa.R.A.P. 1311. Murhon v. Workmen’s Compensation Appeal Board, 51 Pa.Commonwealth Ct. 214, 414 A.2d 161 (1980).

In FMC Corp. v. Workmen’s Compensation Appeal Board (Wadatz), 116 Pa.Commonwealth Ct. 527, 542 A.2d 616 (1988) (en banc), we emphasized this holding and overruled cases which carved out exceptions to this rule. Explaining the importance of the nonappealability of remands we stated:

By holding fast to the Murhon rule, we remove all doubt for trial courts, administrative agencies and counsel for litigants as to our position with respect to the appealability of interlocutory orders.

In the case now before us, there is the possibility, if not the likelihood, that once the referee determines the counsel fee issue which has been remanded to him, yet another appeal will be taken to the Board and then to this Court. Such procedures work against the economical use of judicial time and are at variance with what we tried to accomplish in Murhon.

Id., 116 Pa.Commonwealth Ct. at 529, 542 A.2d at 617.

Therefore, the board erred in holding that Mr. Macaluso’s failure to appeal its initial order results in preclusion of his claim. The order was interlocutory, and Mr. Macaluso may challenge this order on appeal now that the case properly is before us.

The referee found that Mr. Macaluso had fully recovered from his work-related injury on July 13, 1981. Mr. Macaluso argues that there is no evidence of record which substantiates the referee’s finding of full recovery. We agree.

The referee found that Mr. Macaluso sustained a work-related injury on April 6, 1981. This finding of a work-related injury shifted the burden to the employer to show that claimant’s disability had ceased. Barrett v. Otis Elevator Co., 431 Pa. 446, 246 A.2d 668 (1968); J.A.B. Enterprises v. Workmen’s Compensation Appeal Board (Hauhn), 79 Pa.Commonwealth Ct. 638, 470 A.2d 210 (1984).

The referee accepted as credible the testimony of the employer’s medical witness, Daniel Gross, M.D., who testified that the claimant would recover from his low back strain within four months of the injury of April 6, 1981. (Referee finding, 5). However, Dr. Gross did not examine Mr. Macaluso until February 24,1982, seven months after the referee’s finding of full recovery. None of Dr. Gross’s testimony indicated that Mr. Macaluso had fully recovered on July 13, 1981, a date which appears to be arbitrary.²

The referee apparently chose the arbitrary date of July 13, 1981, based upon one phrase from the testimony of Vincent E. Baldino, M.D., claimant’s treating physician, who stated that claimant was “feeling better” on July 13, 1981 (Deposition, April 28, 1982, 18). However, “feeling better” simply cannot be equated with full recovery. “Feeling better” is consistent with Mr. Macaluso continuing to suffer from his condition, but experiencing some relief from his pain on that particular date. The referee erred in relying on this one particular phrase used by Dr. Baldino. The entire medical testimony must be reviewed as a whole and “a final decision should not rest on a few words taken out of context of the entire testimony.” Wilkes-Barre v. Workmen’s Compensation Appeal Board (Scott), 54 Pa.Commonwealth Ct. 230, 234, 420 A.2d 795, 798 (1980).

Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Peak v. Unemployment Compensation Board of Review, 509 Pa. 267, 275, 501 A.2d 1383, 1387 (1985). The evidence upon which the referee relied is not such that a reasonable mind would accept as sufficient to support the conclusion reached by the referee.

We reverse the order of the Workmen’s Compensation Appeal Board and remand for computation of benefits.

ORDER

The order of the Workmen’s Compensation Appeal Board is reversed, and we remand the case for computation of benefits.

Jurisdiction relinquished.

1 . Our scope of review is limited to a determination of whether constitutional rights were violated, an error of law was committed or whether necessary findings of fact are supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa.C.S. § 704.

2 . We respectfully disagree with the dissenting opinion's conclusion that the referee reasonably could conclude that the injury ceased as of July 13, 1981 based upon Dr. Gross’ testimony that the ‘‘injury should resolve itself within four months." Dissenting opinion, 3. In our opinion, there must be some evidence that Mr. Macaluso in fact recovered. There is no such evidence in this record beyond the referee’s conjecture.