Appeal from the Order of the Workmen's Compensation Appeal Board in the case of James Glagola v. Bethlehem Mines Corporation and Commonwealth of Pennsylvania, No. A-76910.
Margaret D. Blough, with her Benjamin L. Costello, Kenneth J. Yablonski, and J. Scott Leckie for petitioner.
David N. Rutt, Greenlee, Richman, Derrico & Posa, for respondent, Bethlehem Mines Corporation.
Judges Rogers, Craig and Palladino, sitting as a panel of three. Opinion by Judge Palladino. Judge Wilkinson, Jr. did not participate in the decision in this case.
This is an appeal from an order of the Workmen's Compensation Appeal Board (Board) which reversed a referee's award of attorney's fees and penalties to James Glagola (Claimant). We affirm in part and reverse in part.
Claimant was last employed as a coal miner for Bethlehem Mines Corporation (Bethlehem), a position he held from 1951 until December of 1975, when he was forced to resign for health reasons. Following his resignation, Claimant filed a claim petition seeking total disability benefits pursuant to Section 306(a) of The Pennsylvania Workmen's Compensation Act (Act), Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 511, for an alleged total disability caused by anthraco-silicosis and/or coal worker's pneumoconiosis. Bethlehem contested this claim, and eventually three hearings were held on the merits of Claimant's petition. At the first hearing, February 3, 1977, Claimant testified about his current physical capabilities, and revealed that he had received medical treatment for Raynaud's disease and scleridermis, two non-occupational diseases. Claimant also introduced into evidence, over Bethlehem's hearsay objection, a report written by a Dr. Kroh which concluded that Claimant's disability was caused by coal worker's pneumoconiosis. At the conclusion of the hearing, the
referee continued the case to afford both parties opportunity to obtain additional medical evidence.
On April 6, 1978, a second hearing was held at which Claimant offered into evidence a deposition of Dr. Kroh, wherein Dr. Kroh reiterated his conclusion that Claimant was disabled by coal worker's pneumoconiosis. Bethlehem then informed the referee that Claimant had been examined on March 8, 1977, by a Bethlehem physician, Dr. Wald, whose report had not yet been received, and requested a continuance which was granted.
At the final hearing on the merits on November 17, 1978, Bethlehem introduced into evidence a report by Dr. Wald, dated March 27, 1978, which concluded that Claimant was disabled by coal worker's pneumoconiosis, and conceded liability. The referee subsequently issued an order granting total disability benefits to Claimant, and that order is not in dispute in this appeal.
On January 16, 1979, pursuant to Claimant's request, the referee conducted a final hearing to determine if Bethlehem should be assessed for attorney's fees pursuant to Section 440 of the Act, 77 P.S. § 996 and/or penalties pursuant to Section 435(d)*fn1 of the Act, 77 P.S. § 991(d). At this hearing Claimant alleged that Bethlehem had no reasonable basis for contesting his claim, particularly after the receipt of Dr. Wald's report. Bethlehem countered by offering into evidence a report by a Dr. Quetsch, who had examined Claimant shortly after the first hearing. In this report Dr. Quetsch concluded that Claimant's disability was caused by a non-occupational disease. ...