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JEDDO HIGHLAND COAL COMPANY v. COMMONWEALTH PENNSYLVANIA (07/22/80)

decided: July 22, 1980.

JEDDO HIGHLAND COAL COMPANY, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, WORKMEN'S COMPENSATION APPEAL BOARD AND NEIL MUSSOLINE, RESPONDENT



Appeal from the Order of the Workmen's Compensation Appeal Board in case of Neil Mussoline v. Jeddo Highland Coal Co., No. A-75748.

COUNSEL

Kathleen A. Lenahan, with her John R. Lenahan, Jr., Lenahan, Dempsey, Murphy & Piazza, for petitioner.

Robert J. Gillespie, Sr., for respondent.

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

Author: Craig

[ 53 Pa. Commw. Page 152]

Employer Jeddo Highland Coal Company appeals from a decision of the Workmen's Compensation Appeal Board (board) which affirmed a referee's determination that Neil Mussoline (claimant) was eligible to receive compensation under Section 108(q) of The Pennsylvania Workmen's Compensation Act (Act), Act of June 2, 1915, P.L. 736, as amended, added by the Act of October 17, 1972, P.L. 930, as amended, 77 P.S. ยง 27.1(q), because he was totally disabled by an occupational disease.

Claimant worked in and around the stripping operations of the coal mining industry during a period which exceeded 20 years. During his tenure with employer, from June, 1957 until November 8, 1976, claimant worked as a jackhammer helper, machine drill helper and truck driver. However, his last position with employer was that of an oiler. Although claimant never worked underground, he labored in extremely dusty conditions.

Before the referee, the parties presented conflicting medical testimony. Consequently the referee appointed Dr. Arthur L. Koch as an impartial medical witness to examine the claimant, make a report and testify as to his findings. After weighing all the testimony, the referee found the claimant totally and permanently disabled by anthracosilicosis.

The board, on appeal by the employer, amended the determination of the referee to find claimant partially disabled. Moreover, the board remanded the case to the referee to give the employer the opportunity to

[ 53 Pa. Commw. Page 153]

    show that work within the claimant's abilities was available to him.

On remand the referee found that the testimony of Mr. William Ratchford, an employer relations representative of the Bureau of Employment Security, was not sufficient to meet the employer's burden of proving suitable job availability, hence the referee reached the total disability determination now presented for our review.*fn1

Employer first contends that the record is devoid of substantial evidence to support the referee's finding that the claimant is permanently and totally disabled due to ...


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