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BETHLEHEM MINES CORPORATION v. COMMONWEALTH PENNSYLVANIA (04/03/78)

decided: April 3, 1978.

BETHLEHEM MINES CORPORATION, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, WORKMEN'S COMPENSATION APPEAL BOARD AND THEODORE SWORCHECK, RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in case of Theodore Sworcheck v. Bethlehem Mines Corp. and Commonwealth of Pennsylvania, No. A-72388.

COUNSEL

Gary L. Sweat, with him Stephen I. Richman, Karl T. Skrypak, and Greenlee, Richman, Derrico & Posa, for petitioner.

Benjamin L. Costello, with him James N. Diefenderfer, for respondents.

President Judge Bowman and Judges Rogers and DiSalle, sitting as a panel of three. Opinion by Judge Rogers.

Author: Rogers

[ 34 Pa. Commw. Page 520]

Bethlehem Mines Corporation (Bethlehem) has filed a petition for review of an order of the Workmen's

[ 34 Pa. Commw. Page 521]

Compensation Appeal Board (Board) affirming an award by a referee to Theodore Sworcheck.

On July 18, 1974, Sworcheck filed a claim petition with the Bureau of Occupational Injury and Disease Compensation alleging total disability as a result of black lung disease (coal workers pneumoconiosis). At the hearings held before the referee on November 15, 1974 and January 17, 1975, Sworcheck submitted into evidence, over objections of Bethlehem, a medical examination report prepared by Dr. C. Charles Iannuzzi stating that Sworcheck was "permanently and totally disabled due to coal worker's pneumoconiosis and that this condition [was] the result of his exposure to dusts while working in the coal mines." Bethlehem likewise submitted into evidence, over objections of Sworcheck's counsel, a medical examination report by Dr. John W. G. Hannon concluding "[t]here is no objective evidence that Mr. Theodore Sworcheck is totally and permanently disabled from coal miners' pneumoconiosis." After the hearings, each counsel for Sworcheck and Bethlehem agreed to withdraw his objections to the admission of the other's medical report. The referee, by his order of March 27, 1975, concluded that Sworcheck had proven "by competent testimony that he has sustained an injury (occupational disease) arising in the course of his employment and related thereto. . . ." The referee then awarded Sworcheck workmen's compensation benefits at the rate of $106.00 per week, 25% of which to be paid by Bethlehem and 75% by the Commonwealth. The Commonwealth and Bethlehem appealed to the Board but the Commonwealth subsequently withdrew its appeal. Bethlehem also filed a petition to have an impartial medical examiner appointed by the Board. By its order of June 30, 1975, the Board vacated and set aside the referee's findings of fact, conclusions of law and order and remanded the record to the referee for the purpose of

[ 34 Pa. Commw. Page 522]

    taking testimony from an "impartial physician." The Board's order went on to designate and appoint J. D. Silverman, M.D. "as the impartial medical expert to examine the Claimant, thoroughly review all previous medical reports of record, and to report his findings accordingly."

Unhappy with the Board's choice of medical expert, Bethlehem filed a "petition to have appointed a new and different impartial medical expert to replace J. D. Silverman, M.D." The petition essentially alleged that Dr. Silverman was not a certified specialist in any recognized field of medicine and that he was biased in favor of Sworcheck because he was affiliated with Sworcheck's union. The Board, by its order of November 17, 1975, dismissed Bethlehem's petition without hearing "for the reason that Dr. Silverman [was] a qualified physician."

Prior to the remand hearing before the referee, Bethlehem served a subpoena on Dr. Silverman directing him to produce records and information by which Bethlehem hoped to establish bias in favor of Sworcheck and his union. The referee quashed this subpoena for reasons that the requested records were irrelevant to the proceedings before him and constituted a collateral attack on the Board's order of November 17, 1975. At the hearing, Bethlehem's counsel asked the referee whether he was "precluded from interrogating or making an inquiry about the question of the partiality or impartiality of Dr. Silverman." In reply, the referee reiterated his reasons for quashing Bethlehem's subpoena. After the ...


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