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COLT INDUSTRIES v. ALBERT BOROVICH AND COMMONWEALTH PENNSYLVANIA (07/30/79)

decided: July 30, 1979.

COLT INDUSTRIES, PETITIONER
v.
ALBERT BOROVICH AND COMMONWEALTH OF PENNSYLVANIA, WORKMEN'S COMPENSATION APPEAL BOARD, RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in case of Albert Borovich v. Colt Industries and Commonwealth of Pennsylvania, No. A-73986.

COUNSEL

Joseph A. Fricker, Jr., for petitioner.

William R. Caroselli, with him McArdle, Caroselli, Spagnolli & Beachler, for respondents.

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

Author: Macphail

[ 44 Pa. Commw. Page 494]

Albert Borovich (Claimant) filed a claim petition under the provisions of Section 108 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, as amended, 77 P.S. ยง 27.1, seeking compensation for total disability due to silicosis, anthraco-silicosis and pulmonary emphysema resulting from exposure to hazards in his employment as a coal handler and as a carpenter in the steel industry. The referee denied compensation, finding as a fact that although Claimant was disabled as a result of pulmonary emphysema and cor pulmonale,*fn1 those diseases "in the absence of pneumocotic [ sic ] process" were not related to or causally connected to Claimant's employment. The referee also found as a fact that the preponderance of the competent and credible testimony indicated that Claimant was not either totally or partially disabled from occupational

[ 44 Pa. Commw. Page 495]

    diseases causally related to his employment. The referee concluded as a matter of law that Claimant was not disabled totally or partially from an occupational disease within the meaning of Section 108 of the Act.

Claimant appealed from the referee's findings of fact and also alleged that the referee erred as a matter of law when he "implied" that emphysema and cor pulmonale, in the absence of a "pneumoconiotic [ sic ] process," can never be an occupational disease. The Board agreed with Claimant, holding that there were "inconsistencies" (which were not specified in the Board's opinion) in the referee's findings of fact and that the referee erroneously concluded that pulmonary emphysema and cor pulmonale, "in the absence of a pneumoconiotic [ sic ] process," is not a compensable disease under Section 108 "of the Occupational Disease Act."*fn2 The Board held that if proper evidence and testimony is presented, pulmonary fibrosis and emphysema and cor pulmonale . . . are compensable occupational diseases under the Workmen's Compensation Act." In support of that language the Board cited Dunn v. Merck and Co., Inc., 463 Pa. 441, 345 A.2d 601 (1975).*fn3 The Board remanded the case to the referee to make additional findings of fact "consistent with this opinion."

At the remand hearing the referee accepted an additional medical report to which he did not refer in

[ 44 Pa. Commw. Page 496]

    his second decision. No other evidence was presented. He found as facts in his second decision that Claimant was disabled from performing his regular occupation due to pulmonary emphysema which resulted from his exposure to noxious dusts and fumes during the course of his employment, that that disease was causally related to Claimant's occupation and that the incidence of the disease was substantially greater in Claimant's occupation than in the general population. The referee based his findings on the "competent and credible testimony and opinions of Dr. Kalla." Colt Industries (Employer) appealed the referee's decision to the Board and the Board affirmed on the basis of the testimony of Dr. Silverman.

In its appeal to us, Employer contends that the Board's remand order after the first decision by the referee was erroneous and that the referee's second decision was in error because he made different findings of fact in the second decision based on the same ...


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