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GREENWOOD MINING v. COMMONWEALTH PENNSYLVANIA (12/06/79)

decided: December 6, 1979.

GREENWOOD MINING, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, WORKMEN'S COMPENSATION APPEAL BOARD, STEVE CIGLAR AND COMMONWEALTH OF PENNSYLVANIA, RESPONDENTS



Appeal from the Order of Workmen's Compensation Appeal Board in case of Steve Ciglar v. Greenwood Mining (Bethlehem Steel) and Commonwealth of Pennsylvania, No. A-74786.

COUNSEL

John R. Lenahan, Jr., with him Lenahan, Dempsey, Murphy & Piazza, for petitioner.

Robert J. Gillespie, Sr., for respondent.

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

Author: Disalle

[ 47 Pa. Commw. Page 546]

Greenwood Mining (Petitioner) has appealed an order of the Workmen's Compensation Appeal Board (Board) affirming an award of compensation to Steve Ciglar (Claimant) pursuant to The Pennsylvania Workmen's Compensation Act (Act), Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 1 et seq., for total disability due to anthracosilicosis.

[ 47 Pa. Commw. Page 547]

Claimant worked in the mining industry for forty-seven years. He last worked as a payloader and bulldozer for Petitioner from 1968 until January 3, 1976, his last working day. Claimant filed a timely claim petition for workmen's compensation benefits, alleging that he was totally disabled by exposure to silica dust in the course of his employment.

A referee conducted hearings at which Claimant and Petitioner presented sharply contradictory medical testimony as to the existence of anthracosilicosis. Testifying for petitioner at the first hearing, Dr. N. M. Wall diagnosed chronic bronchitis and coronary artery disease, but he found no evidence of anthracosilicosis. At the second hearing, Claimant's physician, Dr. P. L. Saras, testified that Claimant was totally and permanently disabled due to anthracosilicosis and pulmonary emphysema. Thereafter, the Commonwealth submitted a report from Dr. H. L. Auerbach indicating that Claimant was principally disabled by heart disease; however, Dr. Auerbach also found "minimal" anthracosilicosis. Because of the conflicting evidence, the referee appointed Dr. Abdul Rashid to serve as an impartial medical expert pursuant to Section 420 of the Act, 77 P.S. § 831. Dr. Rashid diagnosed "mild [sic] restrictive and obstructive pulmonary disease and angina pectoris." He also noted that X-rays showed "category 1 anthracosilicosis." Upon Claimant's request, the referee, in the exercise of his discretion, allowed additional testimony from Dr. Carter Davison. Dr. Davison opined that Claimant was permanently and totally disabled because of anthracosilicosis. Petitioner was present and cross-examined Dr. Davison, but, although given the opportunity to do so, declined to offer further medical evidence. At the close of the hearings, the referee found that Claimant was permanently and totally disabled due to anthracosilicosis and awarded appropriate benefits. The

[ 47 Pa. Commw. Page 548]

Board, as we have noted, upheld the referee's decision. We affirm the Board.

Petitioner argues that the referee's allowance of Dr. Davison's testimony and his partial reliance on it constitute errors of law. Specifically, Petitioner contends that this testimony was merely cumulative and that admission of such cumulative testimony after hearing an impartial witness "usurps the finality" of a workmen's compensation determination. Petitioner seeks a reversal of the award, or, alternatively, a remand to the referee directing him to exclude consideration of Dr. Davison's opinion.

Petitioner concedes that if Dr. Davison's opinion had been presented "in a timely fashion," then it "may not have been cumulative." Thus, the core of Petitioner's objection is to the order in which the testimony was heard. Although the Board conceded that this procedure was unusual, it found no impropriety. The Administrative Agency Law, 2 Pa. C.S. § 505, grants the referee much discretion in conducting hearings. Our careful review of the record convinces us that there was substantial evidence to support the referee's finding of disability. With the caveat that the interests of all parties are best served when these proceedings are conducted with a predictable finality, ...


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