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ALLEGHENY PITTSBURGH COAL COMPANY v. BERNARD OSTROSKI (01/31/74)

decided: January 31, 1974.

ALLEGHENY PITTSBURGH COAL COMPANY, APPELLANT,
v.
BERNARD OSTROSKI, APPELLEE



Appeal from the Order of the Court of Common Pleas of Westmoreland County in case of Bernard Ostroski v. Allegheny Pittsburgh Coal Co., No. 961 April Term, 1972.

COUNSEL

Francis S. McQuilkin, with him Daniel J. Snyder and Costello, Snyder, Berk & Horner, for appellant.

Theodore T. Blair, with him M. Lawrence Shields, III, and Kuhn, Engle, Blair & Stein, for appellee.

President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Opinion by Judge Kramer.

Author: Kramer

[ 12 Pa. Commw. Page 2]

This is an appeal by Allegheny Pittsburgh Coal Company (Allegheny) from an order of the Court of Common Pleas of Westmoreland County affirming an order of the Workmen's Compensation Appeal Board (Board) awarding compensation to Bernard Ostroski (Ostroski) for total disability claimed under The Pennsylvania Occupational Disease Act (PODA), Act of June 21, 1939, P.L. 566, as amended, 77 P.S. § 1201 et seq.

Ostroski was employed as a coal miner by Allegheny from 1946 through September of 1968. On June 10, 1969, he filed a claim under PODA alleging that he was totally and permanently disabled due to anthracosilicosis, contracted as a result of his employment with Allegheny. Hearings were held before Referee Floyd R. Warren, who on September 17, 1971, issued an order

[ 12 Pa. Commw. Page 3]

    disallowing Ostroski's claim. Ostroski appealed to the Board, which reversed the referee and awarded compensation. Allegheny appealed to the Court of Common Pleas, which affirmed the Board. Hence this appeal by Allegheny.

When the party with the burden of proof has prevailed below, our scope of review is limited to a determination of whether the Board's findings and conclusions are supported by substantial evidence. The factfinding function is for the referee and Board, not the appellate courts. Credibility and weight to be given evidence are questions for the Board. If there is conflicting testimony, it is for the Board to resolve the conflict. Furthermore, on review we must give the party prevailing below the benefit of all favorable inferences which can reasonably be deduced from the record made below. See Segzda v. Jones & Laughlin Steel Corporation, 4 Pa. Commonwealth Ct. 498, 287 A.2d 708 (1972); Pagliaroli v. Shenango Penn Mold Co., 189 Pa. Superior Ct. 496, 151 A.2d 637 (1959). See also Utter v. Asten Hill Mfg. Co., 453 Pa. 401, 309 A.2d 583 (1973); and Section 423 of PODA, 77 P.S. § 1523.

Allegheny contends, in essence, that the award is not supported by substantial evidence. It is proffered that the basis or genesis for this argument is a statement found in the Board's opinion. The Board stated: "Considering just the testimony of the two physicians involved, we find ourselves at an impasse. But, when we add the testimony of the claimant, his work history, and a strong public policy argument based on the prevalance [sic] of so-called 'black lung' diseases among coal miners, the pendulum swings toward the claimant."

Using this statement as its focal point, Allegheny makes the following argument: (1) the Board having found an "impasse," claimant's medical testimony is cancelled by Allegheny's, and as such cannot be ...


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