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GERARD J. MCHALE v. COMMONWEALTH PENNSYLVANIA (01/28/81)

decided: January 28, 1981.

GERARD J. MCHALE, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, WORKMEN'S COMPENSATION APPEAL BOARD AND LAURSTAN, RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in case of Gerard J. McHale v. Laurstan, No. A-76186.

COUNSEL

Nicholas S. Mattise, with him Robert W. Munley, David I. Fallk, and Lawrence J. Moran, for petitioner.

Paul A. Barrett, with him Irwin Schneider, Nogi, O'Malley & Harris, P.C., for respondents.

President Judge Crumlish and Judges MacPhail and Williams, Jr., sitting as a panel of three. Opinion by Judge Williams, Jr.

Author: Williams

[ 56 Pa. Commw. Page 345]

In this appeal Gerard J. McHale (claimant) seeks reversal of an order of the Workmen's Compensation Appeal Board denying him occupational disease benefits under The Pennsylvania Workmen's Compensation Act (Act).*fn1 The Board's order affirmed a referee's determination that the claimant had not proved that his disability was caused by an "occupational disease" as defined in Section 108 of the Act.*fn2

For about thirteen years prior to 1977 claimant McHale worked as a welder. From March 1974 to March 1977 he was employed by respondent Laurstan, Inc. as a welder and grinder of sheet metal. On March 15, 1977, he left work because of sickness and breathing difficulties. A few days later he consulted his physician; and about a week after that he was admitted to the hospital for diagnosis and treatment. The claimant's condition at that time was diagnosed as asthmatic. In August 1977 he was again hospitalized, for obstructive pulmonary disease with bronchitis. According to the claimant his breathing difficulties began about one year after he started working for Laurstan, Inc.

McHale filed a claim petition describing his disease as acute asthma aggravated by the conditions of his employment. The petition specifically cited the claimant's inhalation of smoke, dust, metal particles and asbestos in the course of his work as a sheet metal welder and grinder.

[ 56 Pa. Commw. Page 346]

To establish his claim McHale presented the testimony of his physician, Doctor Gregory Salko. According to Doctor Salko the claimant had a lung problem that was aggravated by his working conditions. It was also Doctor Salko's opinion that the claimant had been totally disabled by his condition from March 15, 1977, to June 20, 1977, and remained partially disabled thereafter.

In rebuttal the employer offered the testimony of Doctor Sander Levinson, a specialist in pulmonary diseases and internal medicine. According to Doctor Levinson the claimant's symptoms were related to recurrent bronchitis that is triggered by repeated respiratory infections and a history of multiple episodes of pneumonia, hypertension and sinus tachycardia. According to Doctor Levinson the claimant's condition was also aggravated by a history of heavy cigarette smoking. In the opinion of Doctor Levinson, the claimant's condition was not work related or occupational in nature.

In a workmen's compensation case the weight of testimony is exclusively for the referee to determine; and his decision to accept the testimony of one competent medical witness over that of another equally competent medical witness will not be disturbed on appeal. E.g., Modern Transfer v. Workmen's Compensation Appeal Board, 47 Pa. Commonwealth Ct. 592, 408 A.2d 900 (1979). Such a decision of itself does not constitute a capricious disregard of evidence. E.g., Nye v. Workmen's Compensation Appeal Board, 43 Pa. Commonwealth Ct. 98, 401 A.2d 875 (1979); Workmen's Compensation Appeal Board v. International Furnace Corp., 21 Pa. Commonwealth Ct. 390, 345 A.2d 780 (1975).

In the instant case the referee clearly signified in his findings that he accepted the employer's medical evidence and resolved ...


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