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WORKMEN'S COMPENSATION APPEAL BOARD COMMONWEALTH PENNSYLVANIA AND JOHN RASTOKA v. BETHLEHEM MINES CORPORATION (03/02/76)

decided: March 2, 1976.

WORKMEN'S COMPENSATION APPEAL BOARD OF THE COMMONWEALTH OF PENNSYLVANIA AND JOHN RASTOKA
v.
BETHLEHEM MINES CORPORATION, APPELLANT AND COMMONWEALTH OF PENNSYLVANIA, APPELLEE



Appeal from the Order of the Workmen's Compensation Appeal Board in case of John Rastoka v. Bethlehem Mines Corporation and Commonwealth of Pennsylvania, No. A-70009.

COUNSEL

Stephen I. Richman, with him Karl T. Skrypak, and Greenlee, Richman, Derrico & Posa, for appellant.

Benjamin Costello, with him Kenneth J. Yablonski, and, of counsel, Gail Falk, for appellee, Rastoka.

David A. Ody, Assistant Attorney General, for appellee, Commonwealth.

James N. Diefenderfer, for appellee, Board.

President Judge Bowman and Judges Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Judge Crumlish, Jr. did not participate. Opinion by Judge Rogers.

Author: Rogers

[ 23 Pa. Commw. Page 519]

This is an appeal by an employer from the affirmance by the Workmen's Compensation Appeal Board of a referee's order directing the appellant to pay $150.00 to a claimant's doctor as fee for his deposition entered into the record of a referee's hearing. We affirm the Board's order.

After some 42 years of employment in the coal industry, the claimant John Rastoka retired on August 10, 1973. On December 10, 1973, he filed a claim petition for compensation for silicosis and anthraco-silicosis with the Bureau of Occupational Injury and Disease Compensation. At referee hearings claimant presented his own testimony and a physician's deposition. The employer and the Commonwealth also adduced evidence.

The referee awarded benefits under Section 108(q) of The Pennsylvania Workmen's Compensation Act*fn1 and assessed 25% of compensation payable against the employer and 75% against the Commonwealth, pursuant to Section 305.1 of the Act, 77 P.S. § 411.1.

The employer and the Commonwealth appealed to the Workmen's Compensation Appeal Board which affirmed the referee. The employer has appealed to this Court, arguing only that the imposition on it of the $150.00 fee for the doctor's deposition was improper (1) as a violation of the Fourteenth Amendment of the United States Constitution and Article I, Section 26 of the Pennsylvania

[ 23 Pa. Commw. Page 520]

Constitution,*fn2 and (2) as conflicting with the Act of July 21, 1941, P.L. 425, as amended, 28 P.S. § 416.1 et seq., fixing the pay of witnesses subpoenaed to testify before courts, ...


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