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DOMINICK JOHNSON AND WORKMEN'S COMPENSATION APPEAL BOARD v. BETHLEHEM MINES CORPORATION (02/25/77)

decided: February 25, 1977.

DOMINICK JOHNSON AND WORKMEN'S COMPENSATION APPEAL BOARD
v.
BETHLEHEM MINES CORPORATION, APPELLANT



Appeal from the Order of the Workmen's Compensation Appeal Board in case of Dominick Johnson v. Bethlehem Mines Corp., and Commonwealth of Pennsylvania, No. A-70806.

COUNSEL

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

Amiel B. Caramanna, Jr., with him Albert S. Diaz, for appellee, Johnson.

Mary Ellen Krober, Assistant Attorney General, for appellee, Commonwealth.

Judges Kramer, Rogers and Blatt, sitting as a panel of three. Opinion by Judge Rogers.

Author: Rogers

[ 28 Pa. Commw. Page 638]

This is another of the many appeals lately filed contesting orders of remand made by the Workmen's Compensation Appeal Board. The appellant in each of such appeals is, of course, the party who prevailed before the referee.

The instant claimant, Dominick Johnson, who had worked in the appellant's, Bethlehem Mines Corporation's, coal mine, filed a claim under The Pennsylvania Workmen's Compensation Act*fn1 for total disability from coal miner's pneumoconiosis. After hearings the referee found:

[t]hat the Claimant is not totally and permanently disabled from coal miner's pneumoconiosis and that any disability that he may have is due to hypertensive heart disease. Furthermore, claimant, by collecting weekly unemployment compensation benefits from the Commonwealth of Pennsylvania, has indicated that he was available to work in order to qualify and receive said benefits. This fact negates against

[ 28 Pa. Commw. Page 639]

    his allegation that he was totally and permanently disabled from the said occupational disease.

The referee dismissed Johnson's claim.

The Workmen's Compensation Appeal Board remanded the case to the referee "for him to make a determination on whether the claimant is entitled to partial disability compensation caused by occupational disease under The Pennsylvania Workmen's Compensation Act." The Appeal Board's order was based on its conclusion that while the referee clearly found no total disability from occupational disease, he made no finding with respect to partial disability, necessary because partial disability from coal miner's pneumoconiosis is compensable. The Board also noted that an application for unemployment compensation does not ...


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