Appeal from the Order of the Court of Common Pleas of Washington County in cases of Helen Segzda, Claimant, Widow of Anthony J. Segzdo v. Jones & Laughlin Steel Corporation, Vesta No. 4 Mine, California, Pennsylvania and Commonwealth of Pennsylvania, No. 213 January Term, 1968. Appeal transferred from the Superior Court of Pennsylvania to the Commonwealth Court of Pennsylvania.
Richard C. Witt, Special Assistant Attorney General, with him S. C. Vary, Assistant Attorney General, and J. Shane Creamer, Attorney General, for appellant.
Kenneth J. Yablonski, for appellee.
Judges Kramer, Manderino and Mencer, sitting as a panel of three. Opinion by Judge Kramer.
This is an appeal from an order of the Court of Common
Pleas of Washington County, dated August 17, 1970, reversing a decision of the Workmen's Compensation Board (Board). The Board had affirmed the findings of fact, conclusions of law, and order of the referee disallowing a claim for compensation under the Pennsylvania Occupational Disease Act, Act of June 21, 1939, P.L. 566, 77 P.S. 1201 et seq.
Anthony J. Segzda (Claimant) filed a claim petition under said Act on November 26, 1963, alleging that as a result of his employment with the Jones & Laughlin Steel Corporation in a hazardous occupation having a silica or anthraco-silica hazard, he suffered total occupational disability. At the time the Claimant filed his claim, he was 71 years old and had worked in the coal mines of Pennsylvania for about 45 years. Claimant worked in the Jones & Laughlin mines from 1944 through January 28, 1955, on which date he was dismissed for lack of work at the mines. The record clearly shows that the Claimant had been exposed to coal and rock dust during his last ten years in the employ of Jones & Laughlin. Subsequent to his dismissal on January 28, 1955, Claimant remained unemployed until his death on May 12, 1966, after which date his widow pursued the compensation claim.
The record indicates that, prior to his dismissal, the Claimant had experienced difficulty with his breathing in that he had a shortness of breath. He was treated by his family doctor on occasion for colds. On October 21, 1963, the Claimant was examined by a Dr. Goldman. The examination included a personal history, a physical examination, x-rays and pulmonary function studies. Dr. Goldman was of the opinion that Claimant was totally and permanently industrially incapacitated due to silicosis and emphysema. Neither Jones & Laughlin nor the Commonwealth denies that as of October 21, 1963, the diagnosis of Dr. Goldman is correct.
The problem arises in that Dr. Goldman, in arriving at his medical conclusions following the 1963 examination, had used a series of x-ray plates taken at the Centerville Clinic in the years 1958, 1960 and 1961. Dr. Goldman concluded that no later than January 1, 1959, and quite possibly earlier, Claimant was totally and permanently disabled as a result of silicosis. Dr. Goldman was the sole expert witness in this case inasmuch as the defendants presented no evidence whatsoever. Claimant was the only other witness.
At the conclusion of the Claimant's case, the attorney for the Commonwealth moved for a dismissal on the grounds that the Claimant had failed to prove his case. The referee before whom the testimony had been taken made findings of fact, inter alia, No. 7, which reads: "That after considering all the evidence in this case your Referee finds that the claimant has failed to prove by credible medical evidence that he was totally and permanently disabled from anthraco-silicosis occurring within four years of his last employment to an anthraco-silica hazard." The referee therefore concluded that the Claimant had failed to prove a compensable disability under the Act. The matter was appealed to the Workmen's Compensation Board, and the Board, in an opinion, affirmed the findings and conclusions of the referee. The Board stated: ". . . Dr. Goldman's opinion regarding disability as of January 1, 1959, despite his examination of x-rays taken within four years of Claimant's last employment, appears to us to be speculative and conjectural and not based upon a sound foundation." ...