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LOWERY v. PITTSBURGH COAL COMPANY (ET AL. (06/11/70)

decided: June 11, 1970.

LOWERY
v.
PITTSBURGH COAL COMPANY (ET AL., APPELLANT)



Appeal 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, Division of Consolidation Coal Company and Commonwealth of Pennsylvania.

COUNSEL

Richard C. Witt, Special Assistant Attorney General, with him Clyde M. Hughes, Jr., Assistant Attorney General, and William C. Sennett, Attorney General, for Commonwealth, appellant.

Stephen I. Richman, and Greenlee, Richman, Derrico & Posa, for appellee.

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

Author: Wright

[ 216 Pa. Super. Page 363]

This case is before us for the second time. It arises as the result of a claim petition under The Pennsylvania

[ 216 Pa. Super. Page 364]

Occupational Disease Act*fn1 filed by Joel S. Lowery on May 7, 1964, alleging that he became totally disabled from silicosis on June 4, 1955. By order dated June 9, 1965, the Referee dismissed 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. On June 16, 1967, this court reversed the court below and reinstated the decision of the Board. See Lowery v. Pittsburgh Coal Co., 210 Pa. Superior Ct. 75, 231 A.2d 899. On November 28, 1967, the Supreme Court reversed this court and remanded the record to the Workmen's Compensation Board "for further proceedings not inconsistent with the views expressed herein". See Lowery v. Pittsburgh Coal Co., 427 Pa. 576, 235 A.2d 805. On October 24, 1968, the Board reaffirmed its determination of April 21, 1966. By order dated July 18, 1969, the court below again reversed the Board. The Commonwealth has appealed. In remanding the case to the Board the Supreme Court made the following statement (italics supplied):

"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

[ 216 Pa. Super. Page 365]

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

"We are in agreement with the dissenting opinion in the Superior Court that the Board has furnished an insufficient basis for an adequate review of its decision . . . We conclude that the case must be remanded to the Board so that it may more precisely explain its reasons for rejecting the claim and so that effective judicial review of the Board's decision may be had".

Section 301(c) of the Act, 77 P.S. 1401(c), provides that, to be compensable, Lowery's disability must have occurred within four years after the date of his last employment. It is undisputed that the date of Lowery's last employment was June 4, 1955. The basis of the Board's decision in the case at bar, both originally and on remand, was its refusal to find that Lowery became totally disabled from silicosis within four years after June 4, 1955. The evidence on that question, consisting ...


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