Appeal from the Order of the Workmen's Compensation Appeal Board in case of Anna Kantner, widow of William J. Kantner, deceased v. Reading Anthracite Company, No. A-74865.
Stephen P. Ellwood, with him Lester Krasno, for petitioner.
Joseph Lach, with him James E. Pocius of Lenahan, Dempsey & Piazza, for respondents.
Judges Wilkinson, Jr., Mencer and Craig, sitting as a panel of three. Opinion by Judge Mencer. President Judge Bowman did not participate in the decision in this case.
[ 50 Pa. Commw. Page 438]
Anna Kantner (claimant) appeals from an order of the Workmen's Compensation Appeal Board (Board) which affirmed a referee's decision denying her fatal claim petition for the death of her husband (decedent), allegedly from anthracosilicosis contracted as a result of his employment with the Reading Anthracite Company (employer). We affirm.
Claimant first argues that the decision of the referee is not supported by competent evidence. Employer presented the expert testimony of Dr. R. E. Hobbs, who unequivocally opined that decedent's death was not caused by anthracosilicosis but by other non-related causes. Although claimant presented contrary medical evidence, the referee chose to accept employer's expert, as he is entitled to do. Aluminum Co. of America v. Workmen's Compensation Appeal Board, 33 Pa. Commonwealth Ct. 33, 380 A.2d 941 (1977). We
[ 50 Pa. Commw. Page 439]
cannot say on this record that the referee capriciously disregarded competent evidence. Gateway Coal Co. v. Workmen's Compensation Appeal Board, 36 Pa. Commonwealth Ct. 608, 388 A.2d 1122 (1978).
Claimant argues, however, that the Board erred in permitting Dr. Hobbs to testify, since the doctor had previously testified as an impartial physician in decedent's lifetime claim for total disability benefits and that to allow his testimony in this case as a witness for employer was "ethically improper." We disagree.
A fatal claim petition is a separate action from a lifetime claim, since one seeks to determine cause of death while the other attempts to delineate the cause and degree of a disability.*fn1 Compare Harmar Coal Co. v. Workmen's Compensation Appeal Board, 33 Pa. Commonwealth Ct. 98, 381 A.2d 215 (1977), with Scranton Garment Co. v. Workmen's Compensation Appeal Board, 33 Pa. Commonwealth Ct. 190, 381 A.2d 210 (1977). See Consolidation Coal Co. v. Workmen's Compensation Appeal Board, 37 Pa. Commonwealth Ct. 412, 391 A.2d 14 (1978). Dr. Hobbs' testimony here was limited to his opinion as to the cause of death of decedent and was subject to cross-examination. Claimant cannot complain here of being prejudiced, since Dr. Hobbs was clearly not testifying as an impartial witness. We find nothing improper, either ethically or legally, in allowing Dr. Hobbs to testify.
Claimant next argues that he was unduly restricted in his cross-examination of Dr. Hobbs, since the referee refused to allow claimant to question the doctor regarding claimant's theory that Dr. Hobbs, after getting a "gut feeling" about a claimant's ...