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(NEW) JEDDO HIGHLAND COAL COMPANY v. COMMONWEALTH PENNSYLVANIA (02/28/80)

decided: February 28, 1980.

(NEW) JEDDO HIGHLAND COAL COMPANY, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, WORKMEN'S COMPENSATION APPEAL BOARD AND JOHN H. HOVANIETZ, RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in case of John F. Hovanietz v. (New) Jeddo Highland Coal Company, No. A-74006.

COUNSEL

John C. Mascelli, of Lenahan, Dempsey, Murphy & Piazza, for petitioner.

Robert J. Gillespie, Sr., for respondents.

Judges Crumlish, Jr., Wilkinson, Jr. and Mencer, sitting as a panel of three. Opinion by Judge Wilkinson, Jr. President Judge Bowman did not participate in the decision in this case.

Author: Wilkinson

[ 49 Pa. Commw. Page 494]

This is an appeal by petitioner (employer) from an order of the Workmen's Compensation Appeal Board affirming an award for total disability due to anthracosilicosis to respondent (claimant). We affirm.

Claimant, who started working in the anthracite coal fields in 1938, last worked in that industry on March 31, 1977. After approximately seventeen years underground, the remainder of claimant's work consisted of various assignments in a cleaning plant. Hearings on claimant's claim petition were held on May 27 and August 26, 1977. The referee concluded that an impartial medical witness was needed to help resolve conflicting medical testimony presented at the first hearing. The second hearing produced the testimony of the impartial physician.

[ 49 Pa. Commw. Page 495]

At the first hearing, claimant's family physician, Dr. Wesley G. Stish, stated that the claimant was totally disabled by moderately advanced anthracosilicosis resulting from the "accumulated effect of all his employment in the anthracite industry." In addition to his own clinical evaluation, Dr. Stish utilized the results of x-ray studies performed on claimant by Dr. Edgar L. Dessen, a radiologist, who found the presence of late Category 1 or early Category 2 pneumoconiosis.

In marked contrast, employer's medical witness, Dr. Sander J. Levinson, testified that he could find no evidence of any industrial pulmonary disease and that claimant was not disabled at all from any cause. Dr. Levinson based his medical opinion on the results of a clinical examination and a different set of x-rays which he said revealed clear lung fields within normal limits.

At a second hearing Dr. Peter L. Saras, appointed by the referee as an impartial medical expert, stated that in his opinion claimant suffered from totally disabling pneumoconiosis. Dr. Saras' opinion was based on the results of his clinical examination and the x-ray report originally completed by Dr. Dessen.

Employer contends here that the physician appointed by the referee was not in fact impartial and that a remand is in order for the appointment of a truly impartial witness. Dr. Saras failed to fulfill his appointed role, so the argument goes, because the examination he made of claimant's condition was not thorough and independent. We recently had the opportunity in C.L.S. Coal Co. v. Workmen's Compensation Appeal Board, 46 Pa. Commonwealth Ct. 445, 446, 406 A.2d 604, 605 (1979) to ...


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