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BETHLEHEM MINES CORPORATION v. COMMONWEALTH PENNSYLVANIA (02/27/79)

decided: February 27, 1979.

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



Appeal from the Order of the Workmen's Compensation Appeal Board in case of Michael Vinansky v. Bethlehem Mines Corp. and Commonwealth of Pennsylvania, No. A-72665.

COUNSEL

Stephen I. Richman, with him Arthur M. Wilson, Gary L. Sweat, and Greenlee, Richman, Derrico & Posa, for petitioner.

Benjamin L. Costello, for respondents.

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

Author: Macphail

[ 40 Pa. Commw. Page 612]

Bethlehem Mines Corporation (Employer) appeals from a decision of the Workmen's Compensation Appeal Board (Board) awarding workmen's compensation benefits to Michael Vinansky (Claimant)*fn1 on the basis that he was totally and permanently disabled by coal worker's pneumoconiosis (CWP).

Claimant was employed by various coal companies underground from 1928 to the date of his last employment on February 5, 1974. He filed his claim for workmen's compensation benefits under Section 108(q) of The Pennsylvania Workmen's Compensation Act (Act), Act of June 2, 1915, P.L. 736, as amended, added by the Act of October 17, 1972, P.L. 930, 77 P.S. § 27.1(q).*fn2

Numerous exhibits and much testimony were presented at the referee's hearings. Three physicians testified for Claimant, two for Employer and a deposition of yet another physician was offered by the Commonwealth. The reason for all of the medical testimony and most of the exhibits was to determine

[ 40 Pa. Commw. Page 613]

    whether a claimant who contracted Category 1 Simple CWP was totally disabled, thus entitling him to workmen's compensation benefits. The referee concluded that Claimant was entitled to benefits and the Board affirmed.

In this appeal Employer contends that the Board erred when it refused to remand the case and appoint an impartial expert under Section 420 of the Act, 77 P.S. § 831, and that it erred when it affirmed the referee's finding of total disability in the face of "the universal scientific fact that Category 1 CWP has no symptoms and does not cause disability."

We find no error in the Board's refusal to appoint an impartial expert in this case. Employer contends that such an expert was necessary to enable the Board to determine whether it is a universal scientific fact that Category 1 CWP is not disabling. The language of Section 420 gives the Board, department or referee the authority to appoint impartial physicians or surgeons to examine and report on the claimant's injuries and the authority to appoint "such other experts as shall be necessary to ascertain the facts." Obviously, the appointment of such witnesses is within the Board's discretion. Workmen's Compensation Appeal Board v. Delgado, 22 Pa. Commonwealth Ct. 138, 348 A.2d 447 (1975). In Forbes Pavillion Nursing Home, Inc. v. Workmen's Compensation Appeal Board, 18 Pa. Commonwealth Ct. 352, 357-58, 336 A.2d 440, 444 (1975), Judge Blatt wrote:

Section 420 of the Act, 77 P.S. § 831, empowers the referee, the department or the Board to appoint impartial experts. This authority, it should be noted, is included not within those provisions of the Act describing the appellate powers of the Board, but rather within those sections describing ...


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