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CARPENTERTOWN COAL & COKE COMPANY AND OLD REPUBLIC COMPANIES v. COMMONWEALTH PENNSYLVANIA (06/10/80)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: June 10, 1980.

CARPENTERTOWN COAL & COKE COMPANY AND OLD REPUBLIC COMPANIES, PETITIONERS
v.
COMMONWEALTH OF PENNSYLVANIA, AND COMMONWEALTH OF PENNSYLVANIA, WORKMEN'S COMPENSATION APPEAL BOARD AND CHARLES MOHR, RESPONDENTS

Appeal from the Order of the Workmen's Compensation Appeal Board in case of Charles Mohr v. Carpentertown Coal & Coke Co., and Commonwealth of Pennsylvania, No. A-74502.

COUNSEL

Paul E. Sutter, Hirsch, Weise & Tillman, for petitioners.

Timothy P. Creany, with him Sandra S. Christianson, Assistant Attorney General, for respondents.

Judges Wilkinson, Jr., Craig and Williams, Jr., sitting as a panel of three. Opinion by Judge Craig.

Author: Craig

[ 52 Pa. Commw. Page 135]

Petitioners, Carpentertown Coal & Coke Company (Carpentertown) and its insurer Old Republic Companies, appeal from the order of the Workmen's Compensation Appeal Board (board) which affirmed the referee's award of benefits to claimant Charles Mohr, for partial disability due to coal worker's pneumoconiosis.

Carpentertown employed claimant as a motorman in its coking operation for some three years until he was laid off in March of 1976; shortly thereafter claimant retired. He filed his claim petition under The Pennsylvania Workmen's Compensation Act of June 2, 1915, P.L. 736, as amended, 77 P.S. ยง 1 et seq., on July 29, 1976, alleging that as of that date he was totally or partially disabled by coal worker's pneumoconiosis as a result of his exposure to coal dust in his employment.

Petitioners contend that the referee's finding of partial disability, affirmed by the board, is not supported by substantial evidence.

The law is settled that for purposes of workmen's compensation, the term "disability" is synonymous with "loss of earning power." Killian v. Heintz Div. Kelsey Hayes, 468 Pa. 200, 360 A.2d 620 (1976);

[ 52 Pa. Commw. Page 136]

    attempts to show that a claimant is no longer totally disabled, it is not enough merely to have a physician testify that, medically speaking, he is only partially disabled." 9 Pa. Commonwealth Ct. at 548, 308 A.2d at 634.

In like manner, a claimant's burden of demonstrating a loss of earning power cannot be satisfied by his physician's statement that he is partially disabled, standing alone, without any other evidentiary support for the essential proposition that claimant cannot continue his former occupation.

Because the record fails to provide substantial evidence to support the finding of partial disability, we are compelled to reverse the order appealed.

Order

Now, this 10th day of June, 1980, the order of the Workmen's Compensation Appeal Board at Docket No. A-74502 is reversed, the order of the referee is vacated, and the claim is dismissed.

Disposition

Reversed.

19800610

© 1998 VersusLaw Inc.



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