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GENERAL WOODCRAFT & FOUNDRY AND AMERICAN CASUALTY COMPANY v. WORKMEN'S COMPENSATION APPEAL BOARD AND JOSEPH BESCO (04/23/74)

decided: April 23, 1974.

GENERAL WOODCRAFT & FOUNDRY AND AMERICAN CASUALTY COMPANY, INSURANCE CARRIER, APPELLANTS,
v.
WORKMEN'S COMPENSATION APPEAL BOARD AND JOSEPH BESCO, APPELLEES



Appeal from the Order of the Workmen's Compensation Appeal Board in case of Joseph Besco v. General Woodcraft & Foundry, No. A-63461.

COUNSEL

Carl B. Fried, with him Irwin M. Ringold, for appellants.

Donald R. McKay, with him Cusick, Madden, Joyce, McKay & Associates, for appellees.

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

Author: Blatt

[ 13 Pa. Commw. Page 358]

Joseph Besco (claimant) here seeks workmen's compensation benefits for a disability allegedly resulting from an accident suffered in the course of his employment. He was working as a carpenter for General Woodcraft & Foundry (General Woodcraft), when, in the course of remodeling an old house, he claims to have become violently ill because of exposure to sewer gas escaping from an exposed pipe in the basement. As a result of this incident, he further claims to have

[ 13 Pa. Commw. Page 359]

    developed an acute labrynthitis, which has rendered him totally disabled.

The referee found that the claimant had suffered a compensable injury while in the course of his employment and was totally disabled as a result thereof. The Workmen's Compensation Board*fn1 (Board), however, reversed the action of the referee in an adjudication filed on September 9, 1971, holding that the claimant's testimony was not totally credible and that the testimony of the claimant's medical witness was equivocal as to causation.

The claimant appealed to the Court of Common Pleas of Mercer County, and, in addition, filed a Petition for Rehearing with the Board, pursuant to Section 426 of The Pennsylvania Workmen's Compensation Act, Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 871. On February 9, 1972, the Board granted a rehearing and the lower court remitted the record to the Board. This action was in turn appealed by General Woodcraft to the lower court, which quashed the appeal because it was taken from an interlocutory order. This Court affirmed.*fn2 Thereafter the Board held a reargument, not hearing any additional evidence, and, on July 19, 1973, affirmed the findings of fact and conclusions of law originally entered by the referee and found for the claimant. General Woodcraft has now appealed to this Court once again.

On appeals to this Court in workmen's compensation cases, where the referee has found in favor of the party carrying the burden of proof and the Board has heard no additional evidence, our scope of review is limited to a determination of whether or not constitutional rights were violated, an error of law was committed

[ 13 Pa. Commw. Page 360]

    or any necessary findings of fact, as found by the referee, were unsupported by substantial evidence. Leipziger v. Workmen's Compensation Appeal Board and Guida, 12 Pa. Commonwealth Ct. 417, 315 A.2d 883 (1974). It is here the province of the referee, not the Board, to consider the credibility of the witnesses before it. Malocheski v. Workmen's Compensation Appeal Board and Consolidated Cigar Corporation, 12 Pa. Commonwealth Ct. 430, 316 A.2d 81 (1974). When the first adjudication was issued by the Board in this case, the Board was still the final arbiter of the facts, but because the final adjudication of the Board was filed subsequent to the effective date of the Act of March 29, 1972, P.L. , No. 61, the above stated scope of review is here applicable. The Board in its second opinion here, therefore, was ...


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