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PETRONE v. MOFFAT COAL COMPANY (09/26/67)

decided: September 26, 1967.

PETRONE, APPELLANT,
v.
MOFFAT COAL COMPANY



Appeal from order of Superior Court, Oct. T., 1966, No. 47, affirming order of Court of Common Pleas of Lackawanna County, Sept. T., 1965, No. 1402, in case of Joseph P. Petrone v. Moffat Coal Company and Commonwealth of Pennsylvania.

COUNSEL

Joseph E. Gallagher, with him Ralph G. Mastriani, and O'Malley, Morgan, Bour & Gallagher, for appellant.

Charles J. Bufalino, Jr., Special Assistant Attorney General, with him Clyde M. Hughes, Jr., Assistant Attorney General, and William C. Sennett, Attorney General, for Commonwealth, appellee.

Thomas E. Roberts, Chief Counsel, for State Workmen's Insurance Fund, appellee.

Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Musmanno. Concurring Opinion by Mr. Justice Roberts. Dissenting Opinion by Mr. Chief Justice Bell.

Author: Musmanno

[ 427 Pa. Page 6]

When Joseph P. Petrone was thirteen years of age, the economic straits of his family drove him into the anthracite mines of Lackawanna County. After toiling for thirty-three years in the depth of the earth, extracting one of nature's most useful minerals, Petrone found his strength ebbing, his step faltering, and his lungs clogging. He soon learned that he was doomed by the fate which has caught up with countless coal miners. Anthracosilicosis had taken up dread habitation in his chest. He could not work -- his days as a coal miner were over. He filed a claim petition for benefits under The Pennsylvania Occupational Disease Act of June 21, 1939, P. L. 566, as amended, § 301(e), 77 P.S. § 1401(e). The workmen's compensation referee, to which the petition was assigned, concluded, after taking evidence, that Petrone was totally disabled, even though he was still in the summertime of his life. He was forty-six. The referee awarded him total compensation.

[ 427 Pa. Page 7]

The Commonwealth appealed to the Workmen's Compensation Board and the board reversed the decision of the referee, stating that "Although the claimant is suffering from anthracosilicosis and associated emphysema, he is capable of doing light work of a general nature."

The claimant appealed to the court of common pleas and then the Superior Court, both of which affirmed the decision of the Workmen's Compensation Board. Petrone appealed to this Court for an allocatur which was granted.

The question to be decided here is whether a claimant for compensation is entitled to benefits under the heading of total disability if the only work he can perform is light work of a general nature, when no evidence has been presented that light work, considering the worker's physical disability, his limited education and vocational background, is available.

A Dr. Swartz testified for the Commonwealth that Petrone's physical condition was such that he could no longer work in the mines or compete in the general labor market, but that he could do light work of a general nature. To say that a man can do light work of a general nature is to indulge in language as loose as gravel on a hillside. To a husky longshoreman, lifting pianos might be light work; to a Milquetoast, pushing a wheelbarrow could be heavy work. Apparently Dr. Swartz realized the gelatinousness of his generalization so he probably attempted to give it some specificity by stating that the claimant could work as an elevator or as a power lawn mower operator. With these illustrations he went from the swamp of excessive generalization into the quagmire of misleading specifics. ...


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