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LOWERY v. PITTSBURGH COAL COMPANY (11/28/67)

decided: November 28, 1967.

LOWERY, APPELLANT,
v.
PITTSBURGH COAL COMPANY



Appeals from order of Superior Court, April T., 1967, Nos. 49 and 50, reversing order of Court of Common Pleas of Washington County, May T., 1966, No. 14, in case of Joel S. Lowery v. Pittsburgh Coal Company, division of Consolidation Coal Company, Inc., and Commonwealth of Pennsylvania, Department of Labor and Industry, Bureau of Workmen's Compensation.

COUNSEL

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

Benjamin Diamond, for Commonwealth, appellee.

Anthony J. Polito, with him Rose, Schmidt and Dixon, for appellee.

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

Author: O'brien

[ 427 Pa. Page 578]

Appellant, from April, 1929, until June 4, 1955, had been employed as a coal miner by appellee, Pittsburgh Coal Company. On June 4, 1955, he suffered a myocardial infarction and from that time until his death was totally disabled. In July of 1963, he was informed that he was suffering from advanced silicosis and he filed a claim under the Occupational Disease Act, Act of June 21, 1939, P. L. 566, 77 P.S. § 1201 et seq. Appellant died in August of 1964.

The referee denied appellant's claim on the basis of his refusal to find that appellant became totally disabled from silicosis within 4 years from the date of his last employment, as required by § 301(c) of the Act. 77 P.S. § 1401(c). The Workmen's Compensation Board affirmed the referee's denial of benefits, and an appeal to the Court of Common Pleas of Washington County was taken. That court heard the case en banc and reversed the board. The employer and the Commonwealth appealed to the Superior Court, which reversed the court of common pleas and reinstated the decision of the board, with one judge dissenting. We granted allocatur.

The majority of the Superior Court has undoubtedly correctly stated the law with respect to the review of decisions of the board. Certainly it is the claimant's burden to prove all of the elements necessary to support an award. There is no doubt that the credibility and weight of the testimony are matters for the board to determine. Nor is the board required to accept the testimony of any witness, even though the testimony is uncontradicted. No citations of authority are required to support the proposition that the board, as the final fact-finding body, must determine whether the claimant has sustained his burden, and that the question on review is not whether the evidence would sustain the

[ 427 Pa. Page 579]

    board's finding, but whether there was a capricious disregard of competent evidence.

As previously stated, the Superior Court majority has clearly defined the applicable principles of review of decisions of the board. The difficulty arises in the application of those principles to the peculiar facts of the instant case.

In order to determine whether the board ignored or capriciously disregarded competent evidence, we must examine the record to determine what the medical evidence was. That evidence, briefly summarized, is as follows: The physician who made the diagnosis of silicosis in 1963 testified that the condition was one of long standing, and that in his opinion, the condition had existed in 1955 and 1956. The physician who had treated the decedent subsequent to his 1955 heart attack testified that he did not diagnose silicosis at that time. He explained that at that time he had no facilities to make such a diagnosis. He further testified that in the light of what he had learned subsequent to that time, it was now his opinion that the decedent's disability for at least the period from one year after his 1955 heart ...


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