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BETHLEHEM MINES CORPORATION v. COMMONWEALTH PENNSYLVANIA (01/03/80)

decided: January 3, 1980.

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



Appeal from the Order of the Workmen's Compensation Appeal Board in case of John Dovshek v. Bethlehem Mines Corporation, No. A-75381.

COUNSEL

David N. Rutt, with him Stephen I. Richman, Greenlee, Richman, Derrico & Posa, for petitioner.

Benjamin L. Costello, with him Kenneth J. Yablonski, John Dovshek, William O'Toole, for respondents.

Judges Wilkinson, Jr., Mencer and Rogers, sitting as a panel of three. Opinion by Judge Rogers.

Author: Rogers

[ 48 Pa. Commw. Page 248]

This is an appeal by Bethlehem Mines Corporation (Bethlehem) from an order of the Workmen's Compensation Appeal Board (Board) affirming a referee's award of workmen's compensation benefits to John Dovshek for total and permanent disability due to pneumoconiosis, a form of so-called Black Lung disease, as provided in Section 108(q) of The Pennsylvania Workmen's Compensation Act, Act of June 2, 1915, P.L. 736, as amended, added by Act of October

[ 48 Pa. Commw. Page 24917]

, 1972, P.L. 930, § 1, as amended, 77 P.S. § 27.1(q). We affirm.

In January 1976, Dovshek, a coal miner for forty-six of his sixty-three years, left his employment with Bethlehem, his employer for twenty-six years, due to illness. Upon first learning that he was disabled due to pneumoconiosis in May 1976, Dovshek applied for workmen's compensation benefits. After eight hearings, at which Dovshek testified and the depositions and reports of several medical experts were received, the referee found Dovshek to be totally and permanently disabled by occupational disease and awarded him the maximum allowable benefits and costs.*fn1 The Board subsequently affirmed the referee's award.

Since the referee's decision was in favor of Dovshek, the party with the burden of proof, our review of the facts is limited to a determination of whether the referee's essential findings are or are not supported

[ 48 Pa. Commw. Page 250]

    by substantial evidence. Latrobe Steel Co. v. Workmen's Compensation Appeal Board, 41 Pa. Commonwealth Ct. 460, 399 A.2d 465 (1979).

Bethlehem disputes the referee's finding that Dovshek is disabled from performing the work in which he was last employed. Specifically, the referee found that Dovshek was last employed as an underground shop mechanic, whereas Bethlehem contends that Dovshek's final position was that of supply clerk which, Bethlehem argues, was light work which Dovshek could perform. During the last three months of his employment with Bethlehem, Dovshek did in fact work as a supply clerk. He testified, however, that this assignment was a temporary one in which he was filling a temporary vacancy while the regular supply clerk was out sick. The testimony that Dovshek's supply clerk position was only temporary was not challenged or contradicted by Bethlehem. Therefore, the referee properly found that Dovshek's last regular permanent employment was as an underground shop mechanic, which indeed it was. Moreover, since the referee found that Dovshek's pneumoconiosis prohibited him from contact with ...


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