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GREENWICH COLLIERIES AND OLD REPUBLIC INSURANCE COMPANY v. COMMONWEALTH PENNSYLVANIA (02/28/79)

decided: February 28, 1979.

GREENWICH COLLIERIES AND OLD REPUBLIC INSURANCE COMPANY, INSURANCE CARRIER, PETITIONERS
v.
COMMONWEALTH OF PENNSYLVANIA, WORKMEN'S COMPENSATION APPEAL BOARD, MOSS C. PEEL AND COMMONWEALTH OF PENNSYLVANIA, RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in case of Moss C. Peel v. Greenwich Collieries and Commonwealth of Pennsylvania, No. A-72553.

COUNSEL

Joseph J. Lee, for petitioners.

Timothy P. Creany, for respondents.

Judges Mencer, DiSalle and Craig, sitting as a panel of three. Opinion by Judge Mencer.

Author: Mencer

[ 40 Pa. Commw. Page 634]

Greenwich Collieries (Greenwich) and its insurance carrier, Old Republic Insurance Company, have appealed an order of the Workmen's Compensation Appeal Board (Board), granting partial disability benefits to Moss C. Peel (claimant) because of coal worker's pneumoconiosis, pursuant to the occupational disease provisions of The Pennsylvania Workmen's Compensation Act (Workmen's Compensation Act), Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 1 et seq. We affirm.

Claimant had been employed by various companies as a coal miner since 1926, having worked for Greenwich from March 22, 1970 to November 7, 1973, his last day of employment. On November 26, 1975, claimant filed a petition for total disability compensation under Section 108(q) of the Workmen's Compensation Act, added by Section 1 of the Act of October 17, 1972, P.L. 930, 77 P.S. § 27.1(q). In addition to his own testimony, claimant submitted the medical report of Dr. Robert Klemens, who concluded that claimant was totally and permanently disabled from coal worker's pneumoconiosis, and the results of an examination by Dr. William G. Evans which indicated that claimant was disabled to some extent because of his years of exposure to dust in the coal mines. Both Greenwich

[ 40 Pa. Commw. Page 635]

    and the Commonwealth of Pennsylvania*fn1 introduced their own medical reports which concluded that there was no evidence of any disability caused by coal worker's pneumoconiosis.

Due to the conflict in the medical evidence, the referee appointed Dr. Samuel Bradley as an impartial expert, pursuant to Section 420 of the Workmen's Compensation Act, 77 P.S. § 831. After conducting his own examination of claimant and reviewing the reports of the other doctors, Dr. Bradley, in his report, concluded that claimant was not totally and permanently disabled because of coal worker's pneumoconiosis. Dr. Bradley testified, however, that, although claimant could do work of a sustained nature, since he showed signs of coal worker's pneumoconiosis, claimant should not work in dusty environments and must be considered partially disabled. The referee agreed, finding claimant to be partially disabled, and his decision was affirmed by the Board. This appeal followed.

Greenwich asserts that the testimony of Dr. Bradley, the impartial expert, does not constitute competent substantial evidence to support the referee's findings on claimant's partial disability. The crux of its argument is that Dr. Bradley's opinion that claimant should not work in the mines was not based on claimant's particular medical data but was a general medical recommendation applicable to all miners who, as claimant, had worked in the mines for at least fifteen years and were smokers. Greenwich, however, has overlooked the fact that the referee had before him not only Dr. Bradley's testimony and report but the reports of Drs. Klemens and Evans, claimant's doctors, and claimant's own testimony of his inability to

[ 40 Pa. Commw. Page 636]

    work. Apparently, Greenwich would construe the referee's finding of partial disability as a total rejection of claimant's evidence and a total acceptance of the impartial expert's evidence. A referee, however, as the factfinder is not so constrained. Not only does the referee resolve questions of credibility and make choices between conflicting evidence, including medical evidence, City of Hazleton v. Workmen's Compensation Appeal Board, 35 Pa. Commonwealth Ct. 477, ...


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