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LOWERY v. PITTSBURGH COAL COMPANY ET AL. (06/16/67)

decided: June 16, 1967.

LOWERY
v.
PITTSBURGH COAL COMPANY ET AL., APPELLANTS



Appeals from order of Court of Common Pleas of Washington County, May T., 1966, No. 14, in case of Joel S. Lowery v. Pittsburgh Coal Company et al.

COUNSEL

Benjamin Diamond, for Commonwealth, appellant.

Anthony J. Polito, Robert T. Messner, and Rose, Schmidt & Dixon, for appellant.

Stephen I. Richman, with him Greenlee, Richman, Derrico & Posa, for appellee.

Ervin, P. J., Wright, Watkins, Montgomery, Jacobs, Hoffman, and Spaulding, JJ. Opinion by Wright, J. Dissenting Opinion by Hoffman, J.

Author: Wright

[ 210 Pa. Super. Page 76]

This case arises under The Pennsylvania Occupational Disease Act of June 21, 1939, P. L. 566, 77 P.S. 1201 et seq. On May 7, 1964, Joel S. Lowery filed a claim petition alleging that he became totally disabled from silicosis on June 4, 1955. Answers were filed by the employer and the Commonwealth.*fn1 On May 25, 1964, before any hearing had taken place, Lowery died. His death was called to the Board's attention by letter, but the widow did not file a separate fatal claim petition. See Moore v. Dodge Steel Co., 206 Pa. Superior Ct. 242,

[ 210 Pa. Super. Page 77213]

A.2d 130. After taking testimony at a hearing on August 19, 1964, the Referee made an order, June 9, 1965, dismissing the claim petition. On April 21, 1966, the Workmen's Compensation Board affirmed the Referee's order of dismissal. On October 21, 1966, the Court of Common Pleas of Washington County reversed the Board's decision, substituted its own findings of fact, concluded that compensation should be paid, and remanded the case to the Board for the purpose of fixing the amount due. Both the employer and the Commonwealth have appealed.

It has been consistently held that, where the decision of the Board is against the party having the burden of proof, the Court of Common Pleas has no power to reverse findings of fact by the Board unless there has been a capricious disregard of competent evidence. We recently restated the applicable legal principles in Brasacchio v. Pa. Highway Dept., 208 Pa. Superior Ct. 212, 222 A.2d 418, as follows (citations omitted): "In an occupational disease compensation case it is claimant's burden to prove all the elements necessary to support an award . . . The credibility and weight of the testimony are matters for the Board to determine . . . The Board is not required to accept the testimony of any witness, and this rule applies even though the testimony is not contradicted . . . It is for the Board as the final fact-finding body to determine from all the evidence whether claimant has sustained the burden resting upon him, and its finding that he has not is a pure finding of fact . . . The appellate court must view the evidence in the light most favorable to the party having the Board's decision . . . Where the compensation authorities refuse to find facts in favor of the party having the burden of proof, the question on review is not whether the evidence would sustain such a finding, but whether there was a capricious disregard of competent evidence in the refusal so to find".

[ 210 Pa. Super. Page 78]

The basis of the Board's decision in the case at bar was its refusal to find that claimant became totally disabled from silicosis within four years from the date of his last employment as required by Section 301(c) of the Act, 77 P.S. 1401(c). There is no question that the date of claimant's last employment was June 4, 1955. His attending physician, Dr. Sydney Safran, testified that claimant sustained a coronary heart attack at that time, and was treated for coronary insufficiency, myocardial infarction, and angina pectoris. On May 9, 1961, claimant was admitted to the Canonsburg General Hospital, where his condition was diagnosed as myocardial infarction and angina pectoris. On July 18, 1963, claimant was admitted to Flick State Hospital, and was thereafter treated by Dr. Richard P. Jahnig. It was Dr. Jahnig's opinion that claimant had silicosis. He testified that the silicosis was a condition of long standing "possibly 8 to 10 years prior . . . It dates back to 1955 in our medical history". However, he conceded that he had not known of claimant's admission to the Canonsburg General Hospital. Dr. Safran stated: "There is a very good possibility that a good many of his symptoms could have been caused by this lung condition that caused his death . . . I would have to state that his disability was caused by emphysema and silicosis which we did not know existed". Dr. Safran had previously testified as follows: "During the course of my taking care of him, I believe he was seen by several heart specialists and also seen at the clinic, the miner's clinic. It was through the clinic that he was ultimately referred to a heart specialist in Washington, Pennsylvania, who saw him quite frequently during his later years".

The pivotal issue in the instant case is the date of claimant's disability from silicosis. Having before it the evidence relating to claimant's heart condition, the Board ...


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