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ELIZABETH B. VAVRO v. COMMONWEALTH PENNSYLVANIA (12/29/81)

decided: December 29, 1981.

ELIZABETH B. VAVRO, WIDOW OF METHOD F. VAVRO, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, WORKMEN'S COMPENSATION APPEAL BOARD AND BETHLEHEM MINES, RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in the case of Elizabeth B. Vavro w/o Method F. Vavro v. Bethlehem Mines, No. A-79103.

COUNSEL

Charles A. Bressi, Jr., for petitioner.

Timothy Lenahan, with him Joseph A. Lach, Lenahan & Dempsey, P.C., for respondents.

Judges Mencer, Williams, Jr. and Palladino, sitting as a panel of three. Opinion by Judge Palladino.

Author: Palladino

[ 63 Pa. Commw. Page 463]

Claimant-widow appeals an order of the Workmen's Compensation Appeal Board (Board) which reversed a referee's order sustaining her fatal claim petition in accordance with Section 301(c)(2) of The Pennsylvania Workmen's Compensation Act (Act), Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 411(2).*fn1 We affirm the Board's order denying benefits.

The referee found that Claimant's husband was employed in the anthracite industry from 1937 until January 8, 1977,*fn2 and subsequently died on January 24, 1977, "as a result of anthracosilicosis. . . ." Additionally, the referee determined that the decedent was "presumed to have been exposed to the dust of anthracite during his employment . . . in the anthracite industry."

[ 63 Pa. Commw. Page 464]

Upon considering the appeal filed by decedent's employer, the Board concluded that Claimant's medical evidence of record failed to substantiate the referee's finding that death resulted from anthracosilicosis. Therefore, the Board deleted said finding as well as the derivative presumptive finding that decedent was exposed to anthracite dust during his employment.

On appeal to this Court Claimant argues that the referee's factual findings were supported by competent evidence which the Board improperly ignored.

In workmen's compensation cases "the claimant has the burden of establishing the right to compensation and all of the elements necessary to support an award." Halaski v. Hilton Hotel, 487 Pa. 313, 317, 409 A.2d 367, 369 (1979). Where, as here, the party with the burden of proof did not prevail before the Board, this Court's scope of review consists of determining whether the factual findings are consistent with each other and with the conclusions of law and can be sustained without a capricious disregard of competent evidence. Republic Steel Corp. v. Workmen's Compensation Appeal Board, 56 Pa. Commonwealth Ct. 57, 423 A.2d 1142 (1981).

Although the Act accords to the referee the responsibility for making factual determinations, under Section 413 of the Act, 77 P.S. § 854, "the Board may disregard the findings of fact of the referee . . . if they are not supported by sufficient competent evidence."*fn3 Cornman v. Workmen's ...


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