Appeal from the Order of the Workmen's Compensation Appeal Board in case of Italo Brichetti v. Republic Steel Corporation and Commonwealth of Pennsylvania, No. A-70491.
Robert E. Eberly, Jr., for appellant.
Benjamin L. Costello, with him Kenneth J. Yablonski, for appellee.
Mary Ellen Krober, Assistant Attorney General, for Commonwealth.
Judges Crumlish, Jr., Wilkinson, Jr., and Rogers, sitting as a panel of three. Opinion by Judge Rogers.
[ 26 Pa. Commw. Page 286]
This is an appeal by an employer, the Republic Steel Corporation, and the Commonwealth of Pennsylvania from the Workmen's Compensation Appeal Board opinion and order of February 26, 1975 awarding compensation to the claimant, Italo Brichetti, at the rate of one hundred and six dollars ($106.00) per week because of total disability due to anthracosilicosis and/or coal worker's pneumoconiosis resulting from an employment of twenty-two years in coal mines. The appellants base their appeal on grounds that the Workmen's Compensation referee in making his findings of fact capriciously disregarded evidence introduced by the appellants at the hearing and on the grounds that there was not substantial evidence upon which to base a finding that the claimant is totally disabled due to pneumoconiosis.
The evidence submitted was the testimony of the claimant and the diagnostic reports of three doctors, Dr. M. I. Levine, who testified for the claimant, and Drs. John F. Rush and Richard L. Kalla, who testified for the employer and the Commonwealth. Dr.
[ 26 Pa. Commw. Page 287]
Levine, in his report, concluded after a physical examination and an exercise tolerance test that the claimant was totally and permanently disabled due to pneumoconiosis due to coal dust. Dr. Rush, on the other hand, concluded in his x-ray report that there was no pneumoconiosis present and that the results of a pulmonary function study (allegedly a more reliable indicator of pneumoconiosis) were well within normal limits thereby indicating no pneumoconiosis. Dr. Kalla's report corroborated that of Dr. Rush in that it found no objective indication of totally disabling pneumoconiosis.
In reviewing findings and conclusions, we must first determine the scope of our review. The appellants would argue that our scope of review includes determining whether the Workmen's Compensation referee capriciously disregarded the evidence introduced at the hearing in making his findings of fact, as well as whether the evidence submitted by the plaintiff is substantial evidence upon which a finding that the claimant is totally disabled from pneumoconiosis can be based.
The "capriciously disregarding competent evidence" scope of review is only applicable where the party with the burden of proof (here appellee Brichetti) has not prevailed before the fact finder. In the case of Workmen's Compensation Appeal Board v. Allied Chemical Corporation, 20 Pa. Commonwealth Ct. 562, 564, 342 A.2d 766, 767 (1975), Judge Crumlish of this Court stated in footnote number one:
"In their brief, appellants continually refer to the standard of our evidentiary review as whether the referee capriciously disregarded competent evidence. It should be clear at this point that this standard of review is only applicable where the party with the burden of proof has not ...