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FROMBACH v. UNITED STATES STEEL CORP. (07/21/71)

decided: July 21, 1971.

FROMBACH
v.
UNITED STATES STEEL CORP., AND THE COMMONWEALTH OF PENNSYLVANIA



Appeal from the Court of Common Pleas of Cambria County, Civil Division, as of No. 416 September Term, 1970, in case of Henry Frombach v. United States Steel Corporation and Commonwealth of Pennsylvania.

COUNSEL

Robert S. Glass, for appellant.

James D. Strader, for appellee United States Steel Corporation.

George Raptosh, for appellee Commonwealth of Pennsylvania.

Judges Crumlish, Jr., Kramer and Mencer, sitting as a panel of three. Opinion by Judge Mencer.

Author: Mencer

[ 2 Pa. Commw. Page 557]

This appeal arises as the result of a claim petition under The Pennsylvania Occupational Disease Act, Act of June 21, 1939, P.L. 566, 77 P.S. § 1201 et seq., filed by Henry Frombach (appellant) on or about August 25, 1966, alleging that he was totally disabled from silicosis. By order dated December 9, 1969, the Referee dismissed the claim petition, without discussion, finding: "6. We find as a fact that claimant is not totally and permanently disabled as a result of silicosis." and "2. Since the claimant has failed to prove that he became totally disabled as a result of silicosis, he is not entitled to recover compensation under the provisions of the Pennsylvania Occupational Disease Act." On June 24, 1970, the Workmen's Compensation Board (Board) affirmed the Referee's order by the following opinion, which we quote in toto : "Per Curiam: This case is before the Board on appeal of the claimant. After considering the record and the argument of the parties we can find no compelling reason to disturb the decision of the Referee. We, therefore, affirm the Findings of Fact, Conclusions of Law and Order of the Referee. The appeal of the claimant is dismissed." On December 10, 1970, the Court of Common Pleas of Cambria County affirmed the Board's decision, saying, ". . . with the conflict of evidence we have here, the Board had the right to accept or reject the testimony of any witness" and the Board was not required to accept the testimony of any witness, even if uncontradicted. This appeal followed.

[ 2 Pa. Commw. Page 558]

Our scope of review, since the decision of the Board was against the appellant-claimant, is whether the Board's findings of fact are consistent with each other and with its conclusions of law and order, and can be sustained without a capricious disregard of the evidence. Irvin v. Plymouth Meeting Rubber Division, 182 Pa. Superior Ct. 280, 126 A.2d 491 (1956).

Appellant worked in a foundry for forty-two years, until June 30, 1965, and his exposure to a silica hazard is not in dispute. Disputed, however, is an alleged conflict between two medical reports, one resulting from an examination of appellant on December 16, 1966, by a Dr. Lantos,*fn1 and the other from an examination on March 12, 1968, by a Dr. Bloom.*fn2

After reading 5 Gordy-Gray, Attorneys' Textbook of Medicine paras. 205E.42, 205E.43, and 205E.70 (3d ed. 1970), we are inclined to accept appellant's contention that it is "a well known and thoroughly established medical fact that silicosis is an insidious and progressive disease", and we wonder if there really is a conflict (upon which the lower court relied) between the two medical reports, prepared more than a year apart,

[ 2 Pa. Commw. Page 559]

    or whether they could indeed be consistent with each other. Of course, it is well settled that where there is a conflict of medical opinion, it is the province of the compensation authorities to decide which conclusion will be adopted. Chernetsky v. William Penn Stripping Co., 200 Pa. Superior Ct. 277, 188 A.2d 770 (1963). The Board is not required to accept the testimony of any witness, even though the testimony is uncontradicted, Lowery v. Pittsburgh Coal Co., 427 Pa. 576, 235 A.2d 805 (1967), nor is the Board required to award compensation even where the defendant has presented no evidence, because it could conclude that the claimant has not met the burden of proof, or that his witnesses are not credible, and not worthy of belief even though uncontradicted. Updegrove v. Floyd Wells Stove Co., 160 Pa. Superior Ct. 51, 53, 49 A.2d 870, 872 (1946). Therefore, to choose the report of one specialist over the other does not in and of itself show a capricious disregard of evidence, and, even if the two medical reports are consistent, the Board is not obliged to follow either or both of them. But, the mere fact that our courts have consistently held that the Board is not required to accept the testimony of any ...


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