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CARL I. MOUNTZ v. COMMONWEALTH PENNSYLVANIA (02/14/78)

decided: February 14, 1978.

CARL I. MOUNTZ, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, WORKMEN'S COMPENSATION APPEAL BOARD AND BETHLEHEM STEEL CORPORATION, RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in case of Carl I. Mountz v. Bethlehem Steel Corporation, No. A-71498.

COUNSEL

Joseph Lurie, with him, of counsel, Galfand, Berger, Senesky, Lurie & March, for petitioner.

Harold W. Budding, with him James N. Diefenderfer, for respondents.

Judges Wilkinson, Jr., Rogers and DiSalle, sitting as a panel of three. Opinion by Judge Rogers.

Author: Rogers

[ 33 Pa. Commw. Page 584]

Carl I. Mountz has appealed from a decision of the Workmen's Compensation Appeal Board (Board) dated December 2, 1976 which affirmed a referee's decision that the claimant had failed to establish that his

[ 33 Pa. Commw. Page 585]

    disability was the result of an occupational disease within the meaning of Section 301(c) of The Pennsylvania Workmen's Compensation Act, Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 411.

Claimant was employed for approximately 15 years as an iron ore miner for the Bethlehem Steel Corporation. Because of a respiratory ailment, he terminated that employment on May 8, 1974 on the advice of his doctor.*fn1 On April 24, 1975 he filed a claim petition under the Workmen's Compensation Act alleging that exposure to various pollutants in the mines had caused him to develop pulmonary fibrosis which had totally disabled him. After a hearing, the referee concluded that the claimant had not established that his disability was due to an occupational disease. The Board affirmed the referee without taking additional testimony. We affirm the Board.

Our scope of review when the party with the burden of proof has lost below is limited to determining whether the findings of fact made below are consistent with each other and with the conclusions of law and whether the findings can be sustained without capricious disregard of competent evidence. Workmen's Compensation Appeal Board v. Morton, 22 Pa. Commonwealth Ct. 577, 349 A.2d 773 (1976). The claimant here contends that several of the referee's findings cannot be sustained without the capricious disregard of competent evidence. Only one of these findings, however, pertains to the controlling question of whether or not the claimant's disability was due to an occupational disease.

Because pulmonary fibrosis is not one of the specifically enumerated diseases in Section 108 of The

[ 33 Pa. Commw. Page 586]

Pennsylvania Workmen's Compensation Act (Act), 77 P.S. § 27.1(a) to (m) and (o) to (q), the claimant must satisfy the requirements of subsection 108(n) of the Act which includes ...


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